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Full text of "Lillich on the forcible protection of nationals abroad : in memory of professor Richard Lillich"

PROFESSOR RICHARD B. LILLICH (19334996) 

Photograph courtesy of University of Virginia School of Law 



INTERNATIONAL LAW STUDIES 
VOLUME 77 



International Law Studies 



Volume 77 



Lillich on the Forcible Protection of Nationals Abroad 



In Memory of Professor Richard B. Lillich 



Thomas C. Wingfield 

James E. Meyen 

Editors 




■ 



Naval War College 
Newport, Rhode Island 

2002 



Library of Congress Cataloging-in-Publication Data 

Lillich, Richard B. 

Lillich on the forcible protection of nationals abroad : in memory of 

professor Richard B. Lillich / Thomas C. Wingfield, James E. Meyen, 

editors. 

p. cm.- (International law studies ; v. 77) 
Includes index. 

ISBN 1-884733-23-9 (alk. paper) 

1. Intervention (International law) 2. Diplomatic protection. I. 
Wingfield, Thomas C. II. Meyen, James E. III. Title. IV. Series. 

JX1295.U4vol.77 

[KZ6368] 
341.5'84~dc21 

2002011813 



Contents 



Lillich on the 
Forcible Protection of Nationals Abroad 



Foreword xi 

Introduction xiii 

Preface xv 

RICHARD B. LILLICH (1933-1996): A TRIBUTE 

Professor Robert F. Turner xix 

Author's Note xxvii 

I. The Classical Publicists 1 

A. Grotius 1 

B. Wolff 3 

C. Vattel 3 

II. The Traditional Writers on International Law 7 

A. Phillimore 7 

B. Bluntschli 8 

C. Bonfils 10 

D. Pradier-Fodere 11 

E. Westlake 11 

F. Oppenheim 12 

G. Moore 12 

H. Stockton 12 

I. Clark 13 



J. Hodges 13 

K. Borchard 14 

L. Fauchille 15 

M. Hyde 16 

N. Winfield 16 

0. Offutt 17 

P. Dunn 18 

Q. Hindmarsh 18 

R. Accioly 19 

III. State Practice During the Pre-United Nations Period 25 

A. French Blockade of Argentina. 1838-1840 25 

B. Great Britain, Spain and France in Mexico. 1861 26 

C. Great Britain and Abyssinia. 1867-1868 27 

D. Great Britain in Honduras. 1873 29 

E. Great Britain and France in Egypt. 1876-1879 29 

F. France and Portugal. 1893-1894 30 

G. Boxer Rebellion, China. 1900 31 

H. Franco-Turkish Conflict. 1901 32 

1. Great Britain, Germany and Italy in Venezuela. 1902 33 

J. Italian Invasion of Corfu. 1923 33 

K. French Bombardment of Damascus. 1925 34 

L. Japan and China. 1931-1932 35 

M. Germany in Czechoslovakia. 1938 36 

IV. Contemporary Case Studies of United States Forcible Protection 

of Nationals Abroad 41 

A. Lebanon. 1958 42 

B. The Congo. 1964 49 

C. The Dominican Republic. 1965 57 

D. Iran. 1980 64 

V. Contemporary Case Studies of Non-United States Forcible Protection 

of Nationals Abroad 97 

A. Suez Crisis. 1956 98 

B. Belgium in the Congo. 1960 98 

C. France in Mauritania. 1977 99 

D. France and Belgium in Zaire. 1978 100 

E. France in Mauritania. 1978 101 



Vlll 



F. France in Chad. 1978 101 

G. France in Chad. 1979 103 

H. France in Mauritania. 1979 103 

I. France in Gabon. 1990 103 

J. France and Belgium in Rwanda. 1990 104 

K. France in Chad. 1990 105 

L. France and Belgium in Zaire. 1991 105 

M. France and Belgium in Zaire. 1993 106 

N. Multinational Evacuation Operation in Rwanda. 1994 107 

O. France in the Central African Republic. 1996 108 

Appendix I: 

A Chronological List of Cases Involving the Landing of United States 
Forces to Protect the Lives and Property of Nationals Abroad Prior to 
World War II 115 

Appendix II: 

A History of United States Navy Regulations Governing the Use of 
Force to Protect the Lives and Property of Nationals Abroad 185 

Conclusion 229 

Index 259 



IX 



Foreword 



The International Studies "Blue Book" series was initiated by the Naval War 
College in 1901 to publish essays, treatises, and articles that contribute to the 
broader understanding of international law. With this, the seventy-seventh 
volume of the historic series, we honor the late Professor Richard B. Lillich by 
publishing his final book, a long-awaited volume on the use of force in the 
protection of nationals abroad. 

Professor Lillich is part of the Naval War College family. He held the 
Charles H. Stockton Chair of International Law from 1968-1969, and contin- 
ued to support the Naval War College after his tenure. He was the co-editor of 
Volumes 61 and 62 of the Blue Book series: Readings in International Law from 
the Naval War College Review 1947-1977, vols. I & 2. As the Stockton Profes- 
sor, he would engage his colleagues in discussions of the proper use of the U.S. 
Navy and Marine Corps in one of their most enduring missions, ensuring the 
safety of U.S. citizens overseas. This volume experienced a long gestation since 
then, with years of meticulous research and thoughtful analysis culminating in 
a manuscript shortly before Professor Lillich's untimely death in 1996. His con- 
clusions, while not necessarily official positions of the United States Govern- 
ment, are firmly supported by exhaustive historical research and clearly 
presented case studies, and are an invaluable contribution to the field. 

On behalf of the Secretary of the Navy, the Chief of Naval Operations, and 
the Commandant of the Marine Corps, I extend to the family, friends and col- 
leagues of Professor Lillich, our gratitude for tl^is, his final service^ to his 
country. 



Piff 



LODNE^P. REMPT 
Rear Admiral, U.S. Navy 
President, Naval War College 



Introduction 



The Charles H. Stockton Chair of International Law was established at the Naval 
War College in 1951. Over the past half-century, the Stockton Chair has been 
held by many esteemed professors of international law. Professor Richard B. Lillich 
was one such Chairholder. Volume 77 of the International Law Studies (the "Blue 
Book") series, Lillich on the Forcible Protection of Nationals Abroad, memorializes 
Professor Lillich and his work. The commentary and case studies he wrote clearly 
show that foreign intervention to protect one's citizens has always been a relevant 
and dynamic part of international law, and will continue to be so. 

This volume was made possible only through the efforts of its principal editor, Lieu- 
tenant Commander Thomas Wingfleld, U.S. Navy Reserve. Tom was in the right 
place at the right time at the Naval War College while serving his annual active duty 
stint as a reservist. He shepherded the process of turning rough notes, documents and 
papers into a published book. Working closely with Tom as the co-editor was Lieuten- 
ant Colonel James Meyen, USMC, of our International Law Department. 

Funding for this book was made possible by Dean Alberto Coll, Center for 
Naval Warfare Studies of the Naval War College. His leadership and support 
are key to the Blue Book Series. Invaluable contributions were also made by re- 
tired Professor Emeritus Jack Grunawalt and Captain Ralph Thomas, JAGC, 
USN, (Ret.), who volunteered many hours of their personal time in reviewing 
manuscripts and offering advice. Further assistance was provided by the rest of 
the staff of the International Law Department. 

Volume 77 will serve as a standard reference work of case studies in this 
area, continuing the solid, scholarly tradition of the "Blue Books." The series is 
published by the Naval War College and distributed throughout the world to 
academic institutions, libraries, and both U.S. and international military 
commands. 



DENNIS MANDSAGER 

Professor of Law 

Chairman, International Law Department 



Preface 



"It was only one life. What is one life in the affairs of a state?" 

Benito Mussolini, after running down a child in his automobile (as reported by 
General Smedley Butler, 193 1) 1 

Richard Bonnet Lillich — lawyer, professor, human rights expert and 
advocate — spent his life answering that question. The results of his life's work 
have proven very troubling for the Mussolinis of the world, in that no one has 
done more to chart the limits to which a State may go in protecting its citizens. 

This particular work, Professor Lillich's last, had an unusually long gesta- 
tion. As early as 1980, he wrote in the introduction to another volume in this 
series, Readings in International Law from the Naval War College Review 
1 947- 1 977, vol 2: The Use of Force, Human Rights, and General International Le- 
gal Issues: u [t]his Introduction is not the place to discuss the Entebbe Raid in 
detail. Interested readers will find it considered at some length in my forthcom- 
ing monograph in the "Blue Book" series — Forcible Self Help to Protect Na- 
tionals Abroad." 2 As Professor Lillich continued writing through the 1980s and 
into the 1990s, 3 he kept this manuscript close at hand, continually revising and 
updating the text to reflect each new example of State practice. With his un- 
timely death in 1996, his colleagues gathered the largely complete but 
uncompiled work, and set about preparing it for its long-awaited publication. 

It was my honor to be entrusted with overseeing this task during the last two 
years. Long a student of Professor Lillich's work (if, sadly, not the Professor 
himself), I had already published two articles based on his work in this area. 4 
The first begins with a statement of why Professor Lillich's work in this particu- 
lar area mattered so much: 



[PJerhaps the best criterion for discriminating tyrannies from 
democracies is the sincere, proven emphasis placed upon the value of a 
single human life. The forcible protection of nationals abroad, when 
undertaken for non-pretextual reasons, is the clearest expression of that 
distinction in state practice. The academic challenge in evaluating such 
uses of force is to distinguish such protection from other legitimate uses of 
force, and then to distinguish the uses from other, illegitimate uses of 
force. 5 

In this volume, Professor Lillich rose to this challenge, and set the standard 
for future scholars to match. It was decided against including additional case 
studies covering the post- 1996 period to "update" his work. Their academic 
value did not justify making the text not purely Lillich. Without them, every 
word, except for the Conclusion, is Professor Lillich's, which is more appropri- 
ate for a memorial volume such as this one. To say more about the text which 
follows is unnecessary, as its scope, depth, and clarity speak for themselves. 
There is also no need to say more about Professor Lillich himself, because Pro- 
fessor Robert Turner, also of the University of Virginia, has written movingly 
about his lost friend and colleague in the personal memoriam which follows. 

Editing a Blue Book is as far from a solo undertaking as any could be. I wish 
to thank first Professor Michael N. Schmitt, now of the George C. Marshall Eu- 
ropean Center for Security Studies, for introducing me to the world of the Na- 
val War College, allowing me to assist him in the editing of an earlier Blue 
Book, and advocating to the College's Oceans Law and Policy Department 
(now the International Law Department (ILD)) that I be given a crack at this 
project. Mike is one of the finest men I know, and to the extent that any of us 
can approach the level of his intellect, passion, humor, and thoughtfulness, we 
do so only asymptotically. The College was indeed lucky to have him, as the 
George Marshall Center is lucky now. 

I would also like thank Commander Dean Markussen, USNR, who, in a 
burst of academic insight, set this chain of events in motion by dispatching me 
to the College for a two-week period of active duty training as a reservist. Great 
thanks are also due to the faculty of ILD — particularly Professor Emeritus Jack 
Grunawalt, his successor, Professor Dennis Mandsager; Captain Ralph 
Thomas, JAGC, USN (Ret.), his successor, Colonel Frederic Borch, USA; and 
Lieutenant Colonel James Duncan, USMC, and his successor, Lieutenant Col- 
onel James Meyen, USMC, for accepting me into the ILD family and providing 
all the support and guidance an editor could need. Their faith in this project, 
and in me, is greatly appreciated. 

xvi 



Professor Robert Turner, author of this text's true introduction, is deserving 
of special praise. Given his already hectic schedule of writing, teaching, and 
speaking — made all the more demanding in wake of the recent attacks on our 
nation — he could have declined this writing project with a clear conscience. 
However, drawing on his limitless reserves of energy, he made time to honor his 
friend with the thoughtful tribute which follows. Bob Turner is living proof of 
Professor Lillich's talent for friendship. 

No acknowledgments would be complete without thanking the people who 
actually undertook the steps to physically produce a hardcover book. First is 
LtCol Jim Meyen, my official co-editor and whom I mentioned above, for tak- 
ing the finished manuscript through the process of publication in Newport. 
The sheer number of steps in such a task — from word processing to proofread- 
ing, from indexing to printing — make their coordination a challenging, 
time-consuming, and sometimes frustrating task. For handling the entire proj- 
ect with grace under pressure, Jim is to be sincerely complimented. An enor- 
mous debt is also owed to Captain Donald C. Hill, USNR, who spent a 
two-week training period, and a considerable amount of his own time, in orga- 
nizing Professor Lillich's manuscript. The book's current organization is a result 
of Captain Hill's vision, and it is no overstatement to say that the project could 
not have moved forward without his dedication and patient work. Ms Patricia 
Goodrich, of the Naval War College Press, is also to be commended for her pro- 
fessional editorial assistance; as is the technically adept staff in the Publications 
Office, who made this volume a reality. Last, but certainly not least, is Lieuten- 
ant David Poff, USNR, who put considerable time and effort into updating Pro- 
fessor Lillich's work for publication. His contribution, completed after his recall 
to active duty in the current hostilities, may be seen throughout this text. 

Finally, I would like to thank my friends and colleagues at Aegis Research 
Corporation, Georgetown University Law Center, and the University of Vir- 
ginia School o{ Law for their patience, understanding, and support. Working 
and studying with such fine people is one of life's greatest rewards, and one that 
I now know was enjoyed just as deeply by Professor Richard Bonnet Lillich. 



Thomas C. Wingfield 
Counsel and Principal National 
Security Policy Analyst 
Aegis Research Corporation 

xvii 



NOTES 

1. Benito Mussolini, quoted by Gen. Smedley Butler, reprinted in THE POCKET BOOK OF 
QUOTATIONS 379 (Henry Davidoff ed., 1952). 

2. READINGS IN INTERNATIONAL LAW FROM THE NAVAL WAR COLLEGE REVIEW 

1947-1977 (v. 2), The Use of Force, Human Rights and General International 

LEGAL ISSUES (NAV. WAR C. INT'L L. STUD., v. 62, Richard B. Lillich & John Norton Moore 
eds. 1980), at xi. 

3. For the most complete listing of Professor Lillich's writings, see Samuel Pyeatt Menefee, A 
Tribute to Richard B. Lillich: a Bibliography of the Legal Publications of Professor Richard B. Lillich 
(1933-1996), 38 VA. J. INTL L. 85 (1997). 

4. See Thomas C. Wingfield, Forcible Protection of Nationals Abroad, 104 DICK. L. REV. 439 
(2000) [hereinafter FORCIBLE PROTECTION], and Thomas C. Wingfield, Lillich on Interstellar 
Law: U.S. Naval Regulations, Star Trek, and the Use of Force in Space, 46 S. D. L. REV. 72 (2001) 
[hereinafter INTERSTELLAR LAW]. 

5. See Wingfield, Forcible Protection, supra note 4, at 439. 



xvin 



Richard B. Lillich (19334996): 

A Tribute 



Robert F. Turner 

Richard Bonnot Lillich was born in Amherst, Ohio, on January 22, 1933. After 
undergraduate training at Oberlin College, he earned his LL.B. at Cornell and 
went on to earn his LL.M. and SJ.D. (academic law doctorate) at New York 
University. He served ten years on the faculty of Syracuse University, where he 
was Director of International Legal Studies. During 1968-69, he held the 
prestigious Charles H. Stockton Chair of International Law at the U.S. Naval 
War College. He then joined the faculty of the University of Virginia School of 
Law, where he served as the Howard W. Smith Professor of Law until his 
untimely death twenty-seven years later, from a heart attack at the age of 
sixty- three. 

To that, one might add his Ford Foundation and Guggenheim Fellowships 
in London; service as Thomas Jefferson Visiting Fellow at Downing College, 
Cambridge; other fellowships at Oxford and the Max Planck Institute in Hei- 
delberg; and assorted short-term teaching assignments at Indiana, Georgia, St. 
Louis, and Florida State — where at the time of his death he also served 
part-time as the Edward Ball Eminent Professor of International Law. 

We can't forget his leadership positions: a dozen years on the Executive 
Council of the American Society of International Law, twenty-six years on the 
Editorial Board of the American Journal of International Law, founding member 
of The Procedural Aspects of International Law (PAIL) Institute, founder of 
the Washington, DC-based International Human Rights Law Group; just to 
mention some of the highlights. He was also a prolific writer, co-editing the na- 
tion's first law school casebook on human rights law among his more than forty 
books, sixty chapters in books edited by others, and more than one hundred 
published articles. 



Then there was his role as valued adviser to the Office of the Legal Adviser 
at the State Department and to numerous non-governmental organizations in 
the United States and around the globe. As an advocate, he was often called 
upon by the United States Government and by numerous private clients to ar- 
gue before international tribunals. 

These are the data that inevitably make their way into New York Times obit- 
uaries, and they are important. They tell us that Professor Richard Lillich was a 
man of remarkable professional accomplishment and ability. But they don't 
capture the full measure of the man whose early experiences as an adopted 
child may have contributed to the loyalty and friendship he displayed to col- 
leagues as an adult. In a tribute that appeared in the American Journal of Inter- 
national Law, University of Iowa Law School Professor Burns Weston recalled 
approaching Professor Lillich about sharing some materials he had collected for 
an unwritten study of the British Foreign Compensation Commission: 

[H]e not only said yes, but invited me to Syracuse where he was then teaching, 
provided me free room and board at home with his family, found me a quiet 
office, gave me all his research cards and notes to examine, and authorized me to 
Xerox whatever I needed, asking only that I put things back in the order that I 
found them. And I barely knew him! Richard Lillich always defied the 
conventional wisdom of jealously guarding one's hard-won unpublished 
research. He was uniquely generous and trusting in a profession not known for its 
deference to could-be rivals. 

I first met Dick Lillich while a student in his first seminar on international 
human rights at the University of Virginia School of Law. The assigned 
text — International Human Rights: Problems of Law and Policy, the casebook he 
had just co-authored with Judge Frank C. Newman — did not arrive from Lit- 
tle-Brown until several weeks into the term. 

I enrolled in that seminar with some trepidation. Even then, Dick had estab- 
lished a well-deserved reputation as one of the nation's foremost authorities on 
both international claims and human rights law. But he had also been a vocal 
opponent of U.S. involvement in Vietnam, and my involvement on the other 
side of that debate was no secret. Never one to withdraw from a good argu- 
ment, I anticipated that our different perspectives would surface and I was un- 
sure of the potential effect on my grade point average. 

I was right about one thing. Not only in his human rights seminar, but in two 
other courses I later took from him, our divergent points of view surfaced — re- 
peatedly. He was outraged over human rights abuses in South Korea, and I re- 
sponded that cutting aid could play into the hands of the regime in Pyongyang, 

xx 



whose human rights record was incomparably worse across the board. In retro- 
spect, perhaps we were just describing opposite ends of the same elephant. 
While it seemed to me that we disagreed about everything of significance, I 
knew even then that we were both deeply committed to the cause of human 
rights and human dignity. 

When the time came to pick topics for our research papers, I informed the 
Director of the International Human Rights Law Group, who was assisting 
Dick in the seminar, that I was leaning towards doing a comparative piece on 
human rights in the two Koreas. She cautioned me that might be a mistake in 
view of Professor Lillich's strong views on the topic. I guess my passions were a 
bit intense, too, as I wrote instead about human rights in the two Vietnams. 
Given my views on the issue, I can only imagine the impact it had on poor Dick 
Lillich's blood pressure. 

I knew Dick would get the last shot in our duel, and when grades arrived I 
was hoping for an "A-" and convinced that if he gave me below a "B" it would 
reflect his political biases. To my shock, in that seminar and the two subse- 
quent courses I took from him, Dick gave me "A"s. At the time, Virginia was 
on a strict 3.0 curve, and to give an "A" required a professor to award another 
student a "C" or to downgrade several papers to balance off the 4.0. "A"s were 
thus uncommon. I honestly don't think I earned three "A"s from Dick Lillich, 
and my only explanation for his behavior is his strong sense of professional 
honor. He wanted there to be no question that he was not penalizing me for our 
strong disagreements in class. When I applied for admission to the graduate law 
program, Dick served on the admissions committee that decided to waive the 
LL.M. requirement and admit me directly into the S.J.D. program, even though 
I still think he viewed us as being at opposite ends of the political spectrum on 
key issues. 

After several years working in Washington, I returned to Virginia in 1987, 
and as an additional duty volunteered to teach the introductory international 
law course in the Department of Government and Foreign Affairs until they 
could fill that faculty vacancy. When it came time to discuss international hu- 
man rights, I asked Dick if he would come over as a guest lecturer — neither of 
us realizing that I had scheduled him for Wednesday of Thanksgiving week. He 
accepted, and year after year he returned on the same day to share his vast 
knowledge of international human rights law with a couple of hundred under- 
graduates. He never received a penny for his efforts, and twice he brought his 
young daughter with him so they could head off on the brief vacation he had 
delayed to do me a favor. 



xxi 



We talked a lot over the years, until I departed in 1994 for Newport to oc- 
cupy the Stockton Chair that Dick had held twenty-five years earlier. We also 
took part in several conferences where I could hear his views as a colleague. 
The more I listened to him, the fewer points of disagreement I could find. His 
knowledge of the law was superb. As the present volume reflects, he shared my 
strong belief in the importance of using original sources, of understanding the 
historical development of legal rules through the writings of people like Grotius 
and Vattel, and the importance of careful research. The values he expressed as 

1 grew older were largely my own. And on issue after issue, our bottonvline con- 
clusions were fully in accord. 

To this day, I do not pretend to know what happened. Perhaps the change 
was within me, and as I matured over the years my own views moved gradually 
towards where Dick had always been. Perhaps the end of the Cold War re- 
moved some filters that had influenced our vision during that controversy. Per- 
haps Dick changed. I don't know, but, in the end, my perception of him 
gradually changed. The man who at first appeared to be an exceptionally able 
teacher who was wrong on the issues but honorable and fair almost to a fault, 
had become a cherished friend and colleague — a world-class scholar — whose 
policy preferences on more and more issues I strongly shared. 

Dick Lillich was perhaps best known for his work on international claims 
and State responsibility. I thought of him as a "Liberal" and on occasion, in the 
early days, a man of the "Left." But, in retrospect, he did not champion radical 
positions in either of these fields. Dick believed that it was important for States 
to be held responsible for their conduct, irrespective of any perceived injustices 
in their past, and he believed that when they took the property of others they 
had a duty to pay fair compensation. 

Few issues have more divided international lawyers than that of unilateral 
intervention by one State in the territory of another for the purpose of protect- 
ing nationals. Once again, Dick Lillich rejected the "anti-imperialist" ortho- 
doxy of the Left, arguing that when one State violated the clear rights of foreign 
nationals and endangered their safety, in the absence of an effective multina- 
tional remedy the victim State had a legal right to use necessary and propor- 
tional force to safeguard its nationals. This was clearly the majority view of the 
pre-Charter era, and I share Dick's view that the doctrine survived Article 

2 (4) . Whether one reasons that an intervention limited to protecting the safety 
of one's own nationals is not a use of force against the territorial integrity or po- 
litical independence of the host State, or argues that the rights set forth in 2(4) 
are predicated upon the host State abiding by its own duties not to threaten or 



xxn 



use force improperly and are qualified by the right of self-defense, the outcome 
is the same. 

Dick also did groundbreaking work on the issue of humanitarian interven- 
tion. He understood that human dignity and human freedom are of fundamen- 
tal importance, and that people needed to be protected against at least the 
most flagrant abuses of internationally recognized human rights norms. Ideally, 
this should be done by a united world community under the leadership and di- 
rection of the United Nations Security Council. But Dick understood that the 
Security Council could be blocked from acting by the negative votes of any of 
five Permanent Members. And when the United Nations was unwilling or un- 
able to act, Dick understood that individual States — or, preferably, multina- 
tional coalitions — had a right and duty to act to prevent the most egregious 
violations of human rights. 

Another dear friend, Professor R. J. Rummel, has in recent years called at- 
tention to the problem he defines as "democide" — the slaughter of human be- 
ings outside of war by their own governments. I first learned of this theory in 
1987 while serving as the first President of the congressionally-created United 
States Institute of Peace. Part of our statutory mandate was to make grants to 
institutions and scholars to do research and write books; and when I first read 
Rudy Rummel's initial proposal I could not believe his thesis. Surely, if he was 
right, we would have known this before now. But as I examined his preliminary 
work and contemplated his thesis over time, I became persuaded that he was 
correct and was delighted when our Board of Directors voted to support his re- 
search. Quite properly, he was nominated for the Nobel Peace Prize for his 
groundbreaking scholarship on Democide and the Democratic Peace. 

Rudy Rummel has argued — very persuasively, in my view — that during the 
Twentieth Century, at least three times as many people were killed by their 
own governments unrelated to war than were killed in every war across the 
globe during the same period. This includes Stalin's purges of class enemies, 
Mao's land reform and other campaigns to kill class enemies, Hitler's Holo- 
caust, Pol Pot's butchery of an estimated two million Cambodians, and assorted 
lesser crimes. And very importantly, Rummel has shown that there is a tremen- 
dous inverse correlation between democide and democratic governance. The 
mega-murderers are all totalitarian tyrants. 

Arguably the two most important developments in international law during 
the Twentieth Century were the outlawing of aggressive war through the 
Kellogg-Briand Treaty and UN Charter, and the recognition in the Charter 
and subsequent instruments that sovereign States have a duty to protect cer- 
tain human rights of both their own nationals and aliens who are under their 



xxm 



control. In both categories, the primary violators have been the world's totali- 
tarian regimes — whether from "Left" or "Right." 

The world's leading scholars of international law are very much divided on 
whether it is permissible for any State, or any group of States in the absence of 
Security Council authorization, to use lethal force inside the territory of an- 
other State to protect human rights — even if the alternative is massive geno- 
cide. This debate is much like the dispute over the scope of the right of 
self-defense under Article 5 1 of the Charter, and for much the same reason. 
The scholars who oppose "humanitarian intervention" do so not because they 
favor genocide, but because they fear that if left unconstrained sovereign States 
will use the excuse of such intervention to justify aggression. Thus, in August 
1990, Saddam Hussein could easily have pointed out human rights shortcom- 
ings in Kuwait to excuse his desire to take control of that country. For similar 
reasons, they want to narrow the right of States to use lethal force in "self-de- 
fense" because they recall that when Hitler went into Poland, and Kim II Sung 
invaded South Korea, both told the world they had been attacked first. 

One can acknowledge and even share these concerns and yet still recognize 
that States must be able to defend themselves when attacked — even when the 
attack is masked by the use of paramilitary forces and accompanied by propa- 
ganda designed to mislead the world. Ultimately, the world community can 
usually ascertain the facts and pass judgment upon the resort to lethal force. 
And, similarly, the world should be able to tell between genuine humanitarian 
intervention and the use of that doctrine as a facade to mask aggression. 

At its core, the theory that there can be no lawful exercise of humanitarian 
intervention places international law on the wrong side. Its primary purpose is 
to promote peace and justice. If it holds that the world community must sit 
back in silence if another Hitler surfaces and begins slaughtering millions of in- 
nocent people because of their race, religion, or similar factors, then interna- 
tional law has become part of the problem and must be changed. For no set of 
rules that preordains such a result deserves the respect of civilized men or 
women. Dick Lillich understood this. 

I am honored to be able to write a few words in tribute to this great man — a 
friend and colleague who, in retrospect, was throughout our years of friendship 
also a cherished mentor. I commend the Naval War College for its decision to 
bring out this important volume even after the untimely death of its author. 
Like so many other volumes in this extraordinary series, it will be a valuable 
tool for legal scholars for generations to come. Finally, I am deeply indebted to 
my friend Tom Wingfield, who agreed to undertake the important task of 



XXIV 



completing this manuscript when it became apparent to everyone that my own 
schedule would preclude my doing so. 

Dick Lillich was a remarkable man to whom all who cherish the rule of law 
are indebted. His untimely death by heart attack on August 3, 1996, left the 
world poorer for the loss. But those of us who knew and admired him can take 
solace in the knowledge that his scholarship and ideas will live on both through 
the work of his former students and in the remarkable body of professional liter- 
ature he has left behind. This will presumably be his final publication, and it re- 
flects the exceptional talents that helped make Dick Lillich such a remarkable 
scholar and human being. As with all of us who have had the distinction to 
hold the Charles H. Stockton Chair of International Law at the Naval War 
College, Dick cherished that association. I am confident that he would be de- 
lighted to know that the commitment he made more than three decades ago to 
write a Blue Book has been satisfied. I am all the more certain that this fine 
work will be welcomed by scholars around the globe. 

Charlottesville, Virginia 
November 21, 2001 



XXV 



Author's Note 



The development and implementation of the State's right of forcible protec- 
tion, is the primary focus of this document. 

As with many international law norms, the juridical origins of a State's right 
to protect the lives and property of its nationals abroad may be traced to the 
views of the early, classical publicists. Their writings routinely included a 
State's right of diplomatic protection of its nationals abroad. The validity of a 
State's right of forcible protection of its nationals abroad necessarily grew out of 
the practical aspects of the right of diplomatic protection of a State's nationals. 
Although often addressing the subject indirectly, the classical publicists had a 
significant impact upon the development of the State's right of forcible protec- 
tion of its citizens abroad. 

To the contributions of the classical writers, the later traditional writers on 
international law added descriptions of the evolving practice of States inter- 
vening to protect their nationals transiting or living in other States. One group 
of writers, including Phillimore, Bluntschli and Westlake, viewed the right of 
protection as limited primarily to the use of diplomatic measures. Recognizing 
the justifications offered by the classical writers, as well as the developing State 
practices, a second group of writers, including Bonfils, Pradier-Fodere, 
Oppenheim and Fauchille, asserted an established principle justifying forcible 
measures of protection as well. A third group of writers, primarily from the 
United States, including Moore, Stockton, Clark, Hodges, Borchard, Hyde and 
Offutt, also recognized the then established principle of using forcible mea- 
sures, supplementing their theoretical reasoning with extensive appendices de- 
tailing instances of such protection, primarily in the form of prior US practice. 



Forcible Protection of Nationals Abroad 



A fourth group o( traditional writers, including Dunn and Hindmarsh, with 
world crisis imminent, grudgingly admitted the existence of the principle of 
forcible protection, but made clear their disapproval of its exercise in an in- 
creasingly interdependent international community. 

Following the summary of the classical and traditionalist historical views on 
the State's right of forcible protection of its nationals abroad prior to the sign- 
ing of the United Nations Charter, the impact of post-World War II State prac- 
tice will be discussed. 

With the signing of the United Nations Charter and its broad prohibition of 
the use of force found in Article 2(4), the right of forcible, as opposed to diplo- 
matic, protection entered a new phase as the provision seriously questions the 
concept of forcible protection of nationals abroad. However, the human expe- 
rience in dealing with the practicalities of traversing a foreign State having dif- 
ferent laws, socio-economic experience and political differences, will no doubt 
keep the issue of the State's protection of its representatives and nationals 
abroad, a very timely and dynamic topic for some time to come. 



Richard B. Lillich 



xxvm 



Chapter I 



The Classical Publicists 



To facilitate an understanding of the historical development of the con- 
cept of the right of forcible protection, the earliest publicists are denomi- 
nated herein as the "classical" writers. This group, spanning the Seventeenth 
and Eighteenth Centuries include Grotius, Wolff and Vattel. During this his- 
torical period the European State system assumed a preeminent position in the 
world. 

A. Grotius. Grotius, the "father of international law," developed two funda- 
mental principles that have influenced much of the later thinking on the sub- 
ject of the protection of the lives and property of nationals abroad. 

First, he maintained that a sovereign's concern for his subjects must be para- 
mount. "[T]he first and particularly necessary concern," argued Grotius, "is for 
subjects, either those who are subject to authority in a family, or those who are 
subject to a political authority." 1 

Second, Grotius contended that under the law of nations there existed a 
principle that "for what any civil society, or its head, ought to finish ... by not 
fulfilling the law, for all this there are held and made liable all the corporeal or 
incorporeal possessions of those who are subject to such a society or its head." 2 
Grotius viewed this latter principle, which countenanced collective responsi- 
bility, as pragmatic, the "outgrowth of a certain necessity, because otherwise a 
great license to cause injury would arise." 3 

As a corollary to this forerunner of State responsibility, Grotius considered 
at least two remedial measures open to the protecting sovereign: the "seizure of 
persons" and the "seizure of goods." As to the former, Grotius cited the practice 
of the ancient Greeks, in the form of Attican law which stated: "If anyone die 



Forcible Protection of Nationals Abroad 



by a violent death, for his sake, it shall be right for his relatives and next of kin 
to proceed to apprehend men, until either the penalty has been paid for the 
murder, or the murderers are given up." 4 Grotius extended this approach to 
justify a sovereign's resort to self-help to protect his subjects from potential in- 
jury, stating that "there is nothing in this that is repugnant to nature, and it is 
the practice not only of the Greeks, but of other nations also." 5 

Grotius also discussed briefly "the right of detention of citizens of another 
state in which a manifest wrong has been done to a national, in order to secure 
his recovery." 6 While admitting the existence of such a right, Grotius never- 
theless rejected its utility. In this regard, he described the reasons advanced 
against the seizure of Ariston of Tyre by the Carthaginians. The principal argu- 
ment was that if Ariston were seized "(th)e same thing will happen to 
Carthaginians both at Tyre and in the other commercial centers to which they 
go in large numbers." 7 

With reference to the "seizure of goods," Grotius' second remedial measure, 
he cited, without discussion, the "withernam" of the Saxons and Angles and 
the "letters of marque" authorized by the King of France. 8 Additionally, he 
pointed to Homer's description in the Iliad of Nestor's seizure of "the flocks 
and herds of the men of Elis in revenge for the horses stolen from his father." 9 
Finally, Grotius recounted an instance from Roman history in which 
Aristodemus, the heir of the Tarquins, held Roman ships at Cumae as compen- 
sation for Tarquin property seized by the Romans. 10 

For Grotius, the sovereign's right to use self-help to protect his subjects was a 
far-reaching one, justifying resort to force. As he put it: "Seizure by violence 
may be understood to be warranted not only in case a judgment cannot be ob- 
tained against a criminal or a debtor within a reasonable time, but also if in a 
very clear case (for in a doubtful case the presumption is in favor of those who 
have been chosen by the state to render judgment) judgment has been ren- 
dered in a way manifestly contrary to law; for the authority of the judge has not 
the same force over foreigners as over subjects." 11 

However, such resort to force did not include the taking of life. According to 
the "law of love," "particularly for Christians, the life of a man ought to be of 
greater value than our property. . . ," 12 

Thus, although Grotius did not directly address the question of the protec- 
tion of the lives and property of nationals abroad, he did adopt certain premises 
that influenced subsequent writers in the development of theoretical justifica- 
tions for such protection. Subsequent to Grotius, the importance of the citizen 
to the sovereign, as well as the recognition of the right of a sovereign to protect 



The Classical Publicists 



a citizen, by force if necessary, became recurrent themes in the literature on 
this subject. 

B. Wolff. Wolff, writing in the mid-Eighteenth Century, elaborated upon the 
duty of a nation to preserve itself, a topic that had also been considered earlier 
by Grotius. "Every nation is bound to preserve itself," wrote Wolff, "for the men 
who make a nation, when they have united into a state, are as individuals 
bound to the whole for promoting the common good, and the whole is bound to 
the individuals to provide for them those things which are required as a compe- 
tency for life, for peace and security." 13 Thus, although Wolff did not expressly 
mention the protection of nationals abroad, it can be inferred that, to the ex- 
tent that such protection was required "as a competency for life, for peace and 
security," he believed that a State was obliged to extend its protection to its na- 
tionals abroad. 

Moreover, Wolff recognized as valid the use of force to enforce a State's rights. 

"The right belongs to every nation to obtain its right against another nation 
by force, if the other is unwilling to allow that right. For the right belongs to ev- 
ery nation not to permit any other nation to take away its right, consequently 
also not to permit it not to allow that right. Therefore it is necessary, when one 
does not wish to allow a right, that the other compel it by force to allow it. 
Therefore the right belongs to the one nation against the other nation to obtain 
its right by force, if the other does not wish to allow it." 14 

Indeed, a State had the right to defend itself and its rights against another 
State 15 and to punish another State, by force, which had injured it. 16 Thus, the 
forcible protection of nationals abroad can be brought under either of these 
concepts, especially the latter, without much difficulty. 

C. Vattel. The first writer to focus directly upon the protection of nationals 
abroad was Vattel. Amplifying Grotius' concern for the citizen, as well as his 
justification for a State's enforcement of its rights against another State, Vattel 
argued that: 

Whoever offends the State, injures its rights, disturbs its tranquillity, or does it a 
prejudice in any manner whatsoever, declares himself its enemy, and exposes 
himself to be justly punished for it. Whoever uses a citizen ill, indirectly offends 
the state, which is bound to protect this citizen; and the sovereign of the latter 
should avenge his wrongs, punish the aggressor, and, if possible, oblige him to 
make full reparation; since otherwise the citizen would not obtain the great end 
of the civil association, which is, safety. 17 



Forcible Protection of Nationals Abroad 



Thus, building upon the Grotian premise that a State has a right to protect 
its citizens, Vattel argued that forcible protection not only was justified, but 
that it was an obligation owed by States to their citizens. 

To illustrate the breadth of the principle of protection, Vattel used several 
hypothetical and real examples. For instance, u [t]he sovereign who refuses to 
cause reparation to be made for the damage done by his subject, or to punish 
the offender, or, finally, to deliver him up, renders himself in some measure an 
accomplice in the injury, and becomes responsible for it." 18 Vattel cited the ex- 
ample o( King Demetrius' imputed responsibility for the murder of a Roman 
ambassador by one of the King's subjects in this regard. 19 In that case, after 
King Demetrius delivered the guilty persons to Rome for appropriate punish- 
ment, the Roman Senate sent them back, "resolving to reserve to themselves 
the liberty of punishing that crime, by avenging it on the King himself, or on his 
dominions." 20 It is interesting to note that Vattel, although agreeing that the 
King ultimately was responsible for the acts of his subject, found the Senate's 
conduct unjust, as appropriate reparation had been offered by sending the 
guilty persons to Rome. Vattel's analysis of this incident, applicable to many of 
the instances of forcible protection described herein, was that the Senate's de- 
cision was "but a pretext to cover their ambitious enterprises." 21 

Another instance, described by Vattel, where forcible protection may be ex- 
ercised is when a State "accustoms and authorizes its citizens indiscriminately 
to plunder and maltreat foreigners " 22 In the face of such a situation, "all na- 
tions have a right to enter into a league against such a people, to repress them, 
and to treat them as the common enemies of the human race." 23 As instances 
of this use of the principle of protection, Vattel cited the "guilt" of the nation o( 
the Usbecks for the robberies its citizens had committed, as well as the hypo- 
thetical justification for a Christian confederacy against the Barbary States, "in 
order to destroy those haunts of pirates, with whom the love of plunder, or the 
fear of just punishment, is the only rule of peace and war." 24 

Vattel's seeming endorsement o( a broad right of forcible protection was 
tempered somewhat by his concern with the concept of sovereignty. "We 
should not only refrain from usurping the territory of others," argued Vattel, 
"we should also respect and abstain from every act contrary to the rights of the 
sovereign We cannot, then, without doing an injury to a state, enter its ter- 
ritories with force and arms. . . . This would at once be a violation of the safety 
of the state, and a trespass on the rights of empire or supreme authority vested 
in the sovereign." 25 Thus, "[t]he prince . . . ought not to interfere in the causes 
of his subjects in foreign countries, and grant them his protection, excepting in 
cases where justice is refused, or palpable and evident injustice done, or rules 



The Classical Publicists 



and forms openly violated, or, finally, an odious distinction made, to the preju- 
dice of his subjects, or of foreigners in general." 26 

Being the first of the classical international law writers to expressly discuss 
the protection o{ nationals abroad, Vattel's analysis is not particularly 
far-reaching. The right to protection that he initially developed is qualified by 
his later emphasis on the rights o{ the sovereign. The fact remains, however, 
that Vattel recognized a State's right (obligation) to forcibly protect its citizens 
abroad by avenging the wrongs done to them and punishing their aggressors, at 
least in cases of flagrant injustice. 27 

NOTES 

1. H. Grotius, De Juri Belli Ac Pads Bk. II, Ch. XXV, at 578 (F. Kelsey trans. 1925). 

2. Id., Bk.III.Ch.il, at 624. 

3. Id. 

4. H. Grotius, De Juri Belli Ac Pacis Bk. Ill, Ch. Ill, at 625 (F. Kelsey trans. 1925). 

5. Id. 

6. Id. at 626. 

7. Id. 

8. Id. at 626-27 

9. Id. at 627 

10. Id. at 628 

11. Id. at 627 

12. Id. at 628 

13. C. Wolff, Jus Gentium 22 (]. Scott ed. 1934). 

14. Id. at 138-39. 

15. Id. at 139. 

16. Id. 

17. E. Vattel, The Law of Nations 161 (J. Chitty ed. 1883) (emphasis added). 

18. Id. at 162. 

19. Id. at 163. 

20. Vattel, however, also offered justifications for forcible measures directed against 
culpable States in the hypothetical situations of the "robber-nation" of the Usbecks and the 
pirate-ridden Barbary States. See E. Vattel, The Law of Nations 163 (J. Chitty ed. 1883). 

21. Id. 

22. Id. at 163. 

23. Id. 

24. Id. 

25. Id. at 169. 

26. Id. at 165 (emphasis added). 

27. Id. 



Chapter II 



The Traditional Writers on International Law 



The classical writers were followed by the "traditional writers" on interna- 
tional law of the Nineteenth and early Twentieth Centuries, they in- 
clude Phillimore, Bluntschli, Bonfils, Pradier-Fodere, Westlake, Oppenheim, 
Moore, Stockton, Clark, Hodges, Borchard, Fauchelle, Hyde, Winfield, Offutt, 
Dunn, Hindmarsh and Accioly. 

These writers witnessed the developing State practices which provided an 
interesting counterpoint to the theoretical foundations developed by the ear- 
lier classical scholars. 

A. Phillimore. Phillimore, an English publicist writing in 1854, buttressed the 
theoretical premises of the "classical" textwriters with the actual practice of 
States as it had developed by the mid-Nineteenth Century. The general con- 
clusion he reached was that "[t]he state, to which the foreigner belongs, may in- 
terfere for his protection when he has received positive maltreatment, or when 
he has been denied ordinary justice in the foreign country." 1 However, 
Phillimore specified certain preconditions that must be met before such self-help 
could be undertaken. "[I]t behooves the interfering State to take the utmost 
care," he cautioned, first, that the commission of the wrong be clearly estab- 
lished; second, that the "denial of the local tribunals to decide the question at is- 
sue be no less clearly established." 2 In addition to citing Grotius, Phillimore 
supported his assertion with a reference to the reply of Great Britain to the King 
of Prussia in 1753, wherein it was maintained that a State may exercise protec- 
tion only "in cases of violent injuries directed or supported by the State; and jus- 
tice absolutely denied ... by all the tribunals, and afterwards by the Prince." 3 



Forcible Protection of Nationals Abroad 



Phillimore also distinguished between domiciliary and transient nationals in 
foreign countries. The essence of the distinction was that, while a national of 
one State who becomes domiciled in another State accepts conditions in that 
State for what they are, the transient national does not. According to 
Phillimore, the domiciliary 

"must be held to have considered the habits of the people, the laws of the 
country, and their mode of administration, before he established therein his 
household gods [sic] and made it the principal seat of his fortunes. He cannot 
therefore expect, that every complaint, which he may be disposed to urge upon 
his native Government, with respect to these matters, will o{ necessity be 
considered as requiring national interposition." 4 

Phillimore devoted an entire chapter to the then topical aspect of the pro- 
tection and collection of debts owed by one State to another State's nationals. 
Citing Vattel, Phillimore stated that a [t]he right of interference on the part of a 
State, for the purpose of enforcing the performance of justice to its citizens from 
a foreign State, stands upon an unquestionable foundation, when the foreign 
state has become itself the debtor of these citizens." 5 

Building upon this theoretical foundation, Phillimore invoked relevant 
State practice, exemplified by the famous Palmerston Circular of 1848. 6 This 
statement of policy by the British government recognized that it had the right 
to bring claims on behalf of British subjects who held public bonds and money 
securities of defaulting foreign States, but that the decision whether or not to 
assert such a claim was entirely within its discretion. "It is therefore simply a 
question of discretion with the British Government," wrote Palmerston, 
"whether [a] matter should or should not be taken up by diplomatic negotia- 
tion, and the decision of that question of discretion turns entirely upon British 
and domestic considerations." 7 The circular suggested that only in exceptional 
cases would the government's discretion be exercised in the subject's favor. 

Phillimore, drawing upon the theoretical foundations of Grotius and Vattel, 
substantiated his assertions with examples from ongoing State practice. From 
his discussion, it would seem that Phillimore was contemplating primarily the 
diplomatic protection of nationals abroad. In any event, he considered that a 
principle of international law had developed, both in theory and in practice, 
which justified a State's protection of the lives, property and debts owed its na- 
tionals living abroad, perhaps even by the use of forcible measures. 

B. Bluntschli. To Bluntschli, writing in 1874, the right of a State to protect its 
nationals abroad appeared unquestionable. Bluntschli wrote: 

8 



The Traditional Writers on International Law 



The state has the right and the duty to protect its nationals abroad by all the 
means authorized by international law: 

a) When the foreign state has proceeded against them in violation of the 
principles of this law. 

b) When ill treatment or injuries received by one of its nationals was not caused 
directly by the foreign state, but it did nothing to oppose such ill treatment or 
injuries. 

Each state has the right to request reparation for the injustice, reimbursement for 
the injuries caused, and to demand, according to the circumstances, guarantees 
against the commission of similar acts. 8 

Bluntschli illustrated this principle with several examples, including a 
State's enslaving of another State's nationals, depriving them of their religion, 
destroying their goods, treating them with cruelty, violating treaties of com- 
merce, and not respecting the law of nations governing the relations between 
States. 9 As an example of State practice in this regard, Bluntschli cited the 
British military expedition against the King of Abyssinia in 1867 who refused to 
free British nationals whom the king illegally held. 10 According to Bluntschli, 
this example involved an exercise of the right of forcible protection par 
excellence. 

Bluntschli expanded his examination to the situation where the foreign 
State citizen, and not the State itself, commits the injurious act. In such a case, 
he argued, the allegedly injured person or persons first must seek a remedy in 
the courts of the State in which the injury occurred. However, if that State re- 
fuses or otherwise fails to render justice, the State of which the injured party is a 
national may intervene. 11 

At the same time, Bluntschli limited the principle of protection — at least 
non-forcible protection — to times where there was no internal strife or civil 
war in the foreign State. 12 His rationale for this position appears to be that a 
State should not be held responsible for acts over which it has no control, as is 
likely to be the case in such circumstances. As is apparent, this reasoning illus- 
trates Bluntschli's assumption of the inseparability of the corollary principles of 
the right of diplomatic protection and State responsibility. 

In support of this limitation upon the right of protection, Bluntschli cited 
several examples, including the Don Pacifico case in 1849; the notes of Prince 
Schwarzenberg on 24 April 1850 and Prince Nesselrode on 2 May 1850, to the 
effect that a State forced by revolution to take one of its cities controlled by 



Forcible Protection of Nationals Abroad 



insurgents should not be obliged to indemnify foreigners who by chance are in- 
jured in the process; the refusal of the United States to indemnify Spanish na- 
tionals injured in New Orleans in 185 1 ; the U.S. Civil War; and the decision of 
the Great Powers in resolving the Greek-Turkish conflict on 15 January 1869. 13 
In contrast to Phillimore, Bluntschi made no reference to the "classical" 
writings of Grotius and Vattel. Instead, he merely stated that a right and duty of 
protection existed and cited several supporting examples. As can be seen from 
the above discussion, however, Bluntschli — like Phillimore — apparently 
viewed the right of protection as involving principally diplomatic, rather than 
forcible, measures. 

C. Bonfils. Writing in 1894, the Frenchman Bonfils similarly recognized the 
right of a nation to protect its nationals abroad stating, "To recommend its na- 
tionals to the authorities of the country in which they have established their 
residence, to defend their interests in diplomatic notes, to demand reparation 
for the wrongs which they have suffered ... is not to intervene; on the contrary, 
it is to recognize the sovereignty of the State addressed." 14 

Although the above formulation may appear to support only the principle of 
diplomatic protection, it is clear from Bonfils' description of State practice that 
his principal concern lay with forcible protection. As examples, Bonfils cited 
the French blockade of Argentine ports in 1838-1840, 15 as well as the initial 
stages of the combined action of England, Spain, and France against Mexico in 
1861. 16 According to Bonfils, this latter example began as a joint effort to ob- 
tain reparation for damages to nationals of the three States and to ensure Mex- 
ico's compliance with its international agreements. When the effort turned 
into an attempt by Napoleon to install an empire under Maximilian of Austria, 
the character of the action changed from the protection of nationals to that of 
flagrant intervention. 17 

Turning to the question of the right to protect nationals who are creditors of 
foreign governments, Bonfils again relied on State practice, citing the 
Palmerston Circular. 18 He observed that u [i]n fact, the European Governments 
have intervened in favor of their nationals who had lent money to foreign gov- 
ernments, against weak states, incapable of resisting, but not against strong 
States. . . ." 19 As an example of such intervention, Bonfils cited the control ex- 
erted by France and Britain over Egypt in 1876 to protect the investments of 
their nationals. 20 Clearly, for Bonfils the right of forcible protection extended 
to both creditor and property rights of a State's nationals as well as the protec- 
tion of their lives. 

10 



The Traditional Writers on International Law 



D. Pradier-Fodere. The Frenchman Pradier-Fodere, writing in 1885, described 
the right of forcible protection of nationals and their property abroad as rooted 
in the writings of the "classical" publicists, particularly Vattel. According to 
Pradier-Fodere, " [i] t is the duty of all states to protect their nationals in foreign 
countries by all means which international law authorizes." 21 Citing Vattel, he 
stated further that States possess "the right to obtain justice by force, if it can- 
not be done otherwise." 22 

Pradier-Fodere, however, recognized certain restrictions upon the exercise 
of the right of protection. Thus, a foreigner who had become domiciled in a 
State had less justification to call upon his government for protection than a 
transient foreigner. 23 In addition, he observed that in most cases protection was 
accomplished more effectively by diplomatic demands for compensation than 
by forcible self-help. 24 Nevertheless, he pointed to certain examples where re- 
sort to force or the threat thereof was justified as a protective measure. In this 
regard he cited the Anglo-French control of Egypt in 1876 to protect the inter- 
ests of British and French creditors, 25 as well as the threatened Anglo-French 
intervention in the Ottoman Empire in 1859 to remodel its financial laws. 26 

E. Westlake. Westlake, an Englishman writing in 1904, offered an extensive dis- 
cussion of the right to protect nationals abroad under the heading of "denial of 
justice." "If [foreign States] are wanting either to the judicial or to the adminis- 
trative department," he argued, "the state to which a foreigner belongs has a 
claim to step in for his protection which often has this in common with political 
claims, that the justice which the foreign power demands for its subject is not 
measurable by definite rules." 27 In support of this somewhat amorphous propo- 
sition, Westlake cited Vattel, 28 the "general conscience of the peoples of Euro- 
pean civilization," 29 and several statements by officials of the U.S. 
government. 30 Westlake, like Bluntschli, recognized an important limitation 
on the right to protect nationals abroad. "During an insurrection," he stated, 

"the best will on the part of the state government, backed by the best laws, is 
often unable to prevent or to punish regrettable occurrences. In those 
circumstances it is not usual for a state to indemnify its own subjects, and 
foreigners can have no better claim than nationals in a matter not generally 
recognized as one for indemnity. . . ." 31 

Westlake also considered the right of protection in the case of contractual 
claims. Examining, first, U.S. practice in this regard, he noted the adoption of a 
cautious policy. Citing statements by Secretary of State Seward in 1866 and 

11 



Forcible Protection of Nationals Abroad 



Secretary of State Fish in 1870, Westlake concluded that U.S. nationals invest- 
ing in foreign States had "assumed the risk" of such ventures, and that the U.S. 
government normally would not intervene on their behalf. 32 Here can be seen 
the developmemt of the concept that in financial matters, (contracts, 
debtor-creditor relationships) that States would not intervene with force on be- 
half of a national who had contracted with a foreign State or one of its citizens. 

F. Oppenheim. Oppenheim, another Englishman writing in 1905, recognized 
the validity of the right of forcible protection. According to Oppenheim, "[b]y 
a universally recognized customary rule of the "Law of Nations" every State 
holds a right of protection over its citizens abroad. . . . 33 In his view, this right 
was discretionary, not obligatory. 34 Oppenheim recognized several means by 
which the right might be enforced, including diplomatic notes, retortion and 
reprisals, and intervention or war where necessary. 35 

Oppenheim offered little guidance about which protective technique was 
appropriate in a particular case. Instead, he merely stated that "[e] very thing 
depends upon the merits of the individual case and must be left to the discre- 
tion of the State concerned." 36 However, he did mention certain criteria that a 
State might consider in exercising its discretion, including "whether the 
wronged foreigner was only traveling through or had settled down in the coun- 
try, whether his behavior has been provocative or not, how far the foreign Gov- 
ernment identified itself with the acts of officials or subjects, and the like." 37 

G. Moore. Writing in 1905 on the subject of U.S. diplomacy, John Bassett 
Moore also addressed the question of whether forcible self-help could be used 
to protect nationals and their property abroad. 38 Underlying his discussion was 
the proposition that u [a]mong the rules of conduct prescribed for the United 
States by the statesmen who formulated its foreign policy, none was conceived 
to be more fundamental or more distinctively American than that which for- 
bade intervention in the political affairs of other nations." 39 However, Moore 
maintained that u [t]he right of the government to intervene for the protection 
of its citizens in foreign lands and on the high seas never was doubted; nor was 
such action withheld in proper cases." 4 Moore supplemented this brief analysis 
with a careful description of a large number of instances of intervention for 
such protective purposes. 41 

H. Stockton. A brief discussion of the right of forcible protection of the lives and 
property of nationals abroad is afforded by the work of Charles H. Stockton, a 
U.S. naval officer and legal scholar writing in 1911. Departing from the 

12 



The Traditional Writers on International Law 



traditional emphasis upon diplomatic pressures to protect nationals abroad, 
Stockton proposed that special measures be utilized in situations involving 
"weak states with unstable governments." In such situations, he argued, "it at 
times occurs that citizens abroad must be protected at once, not by diplomatic 
representation; there is not time for that, but by the employment of naval 
force." 42 Stockton invoked as authority for his position the appropriate Navy 
regulations governing the use of naval force. 43 Stockton also discussed briefly 
measures that might be justified in the case of another class of governments, 
the "semi-civilized or barbarous." In these situations, "intervention by force on 
behalf of citizens domiciled or sojourning there is a more common matter. In 
these countries the employment of naval forces is the principal means of such 
protection, added thereto at times by landing of military detachments." 44 

I. Clark. The right of a State to protect its nationals and their property abroad 
was spelled out in considerable detail by J. Reuben Clark, writing as Solicitor 
for the U.S. Department of State in 1912. 45 According to Clark, the existence 
of such a right often was obscured by the tendency that many international law 
writers exhibited to apply the same strictures to the protection of nationals 
abroad that they applied to political interventions. 46 When a State's motive in 
employing forcible self-help was simply "the protection of citizens or subjects. . . 
until the government concerned is willing or able itself to afford the protec- 
tion," 47 he believed it not subject to the same criticisms as a purely political in- 
tervention. From an analysis of the writings of the many authorities cited in his 
study, 48 Clark concluded that: 

There is considerable authority for the proposition that such interposition by one 
State in the internal affairs of another State for the purpose of affording adequate 
protection to its citizens resident in the other, as well as for the protection of the 
property of such citizens, is not only not improper, but, on the contrary, is based 
upon, is in accord with, and is the exercise of a right recognized by international 
law.49 

The remainder of Clark's study comprises an extensive listing of instances in 
which the United States had acted in accordance with this right of forcible 
protection. 

J. Hodges. Henry Hodges, a U.S. author writing in 1915, discussed the right of 
forcible protection under the rubric of "non-political intervention." 50 His justi- 
fiable rationales for such intervention consisted of the protection of citizens, 
the denial of justice and the protection of missionaries. All three of these 

13 



Forcible Protection of Nationals Abroad 



categories include situations, which could fall within the principle of forcible 
protection. 

Regarding his rationale for the protection of citizens, Hodges stated that 
" [ w] hen order is neglected by, or is impossible for the foreign government, then 
the more advanced state has a right to intervene for the protection of the life 
and property of its citizens." 51 According to Hodges the measures a protecting 
State could take might involve, "the establishment and enforcement of some 
degree of law and order in that community." 52 

With reference to the "denial of justice" justification for intervention, 
Hodges adopted the view of Secretary of State Bayard, who had stated "[t]hat 
the State to which a foreigner belongs may intervene for his protection when 
he has been denied ordinary justice in a foreign country, and also in the case of 
a plain violation of the substance of natural justice is a proposition universally 
recognized." 53 In contrast to the protection of citizens justification, Hodges' 
discussion of denial of justice appears to be geared more to diplomatic than to 
forcible measures of protection. 54 

"Respecting the protection of missionaries," Hodges noted, "the United 
States shows about the same consideration as she does in respect to other 
classes of citizens resident abroad." 55 Thus, according to Hodges, "[t]he United 
States does not go so far in these matters as do some of the European states 
which undertake to assume a limited protectorship over Christian communi- 
ties, especially in Turkey." 56 In addition, the examples cited by Hodges in this 
regard, such as the Caroline case and Pelew Islands dispute in 1893, 57 suggest 
that such protection under those facts is limited to diplomatic as opposed to 
forcible measures. 58 

K. Borchard. In discussing U.S. practice, Edwin Borchard observed in 1915 that 
'[t]he army or navy has frequently been used for the protection of citizens or 
their property in foreign countries in cases of emergency where the local gov- 
ernment has failed, through inability or unwillingness, to afford adequate pro- 
tection to the persons or property of the foreigners in question." 39 His analysis 
consisted primarily of a description of U.S. practice with a minimum of theoret- 
ical discussion. The closest he came to justifying such forcible protection under 
international law was to cite the Memorandum of J. Reuben Clark which stated 
that "when confined to the purpose of assuring the safety of citizens abroad, or 
exacting redress for a delinquent failure to afford local protection, the action 
must be considered not as a case of intervention, but as non-belligerent inter- 
position." 60 

14 



The Traditional Writers on International Law 



Borchard listed at least five purposes for which U.S. military personnel had 
been landed for "non-belligerent interposition" reasons: (1) the protection of 
U.S. citizens in "disturbed localities"; (2) the punishment of natives for injuries 
to U.S. citizens; (3) the suppression of local riots; (4) the collection of indemni- 
ties; and (5) the seizure of custom houses as security for the payment of 
claims. 61 He observed that most of these landings had occurred in Latin Amer- 
ica as the result of the "hegemony of the United States on this continent and 

the force of the Monroe Doctrine " 62 Borchard indicated that such landings 

had not always been against the will of the local government; indeed, some- 
times they actually had been carried out in response to an express invitation. 63 

As examples of "non-belligerent interposition" involving the use of force, 
Borchard cited the joint action of the United States and other nations in China 
in 1900 at the time of the Boxer Rebellion, 64 as well as the landing of American 
troops in Nicaragua in 1910. 65 He maintained, however, that such interven- 
tions were "by accident or unavoidable consequence. . . , rather than by princi- 
pal design. 66 This statement however, seems to be more political than legal 
pronunciation. 

Borchard concluded his analysis with an examination of whether congres- 
sional action was required to authorize the use of the armed forces for the pro- 
tection of U.S. citizens abroad. 67 His conclusion was that such authorization 
was unnecessary given the then-predominant view that "the Executive has un- 
limited authority to use the armed forces of the United States for protective 
purposes abroad in any manner and on any occasion he considers expedient." 68 
Thus, in contrast to most of the writers discussed previously, Borchard avoided 
any detailed justification of the right of protection under international law. In- 
stead, he analyzed U.S. practice as it had developed and attempted to draw 
generalizations therefrom. What emerged was the view that forcible protection 
was justified, at least for certain "non-belligerent" objectives. 

L. Fauchille. In a discussion of intervention and international law, the French- 
man Fauchille, writing in 1922, noted that the use of force to protect nationals 
abroad was a recognized exception to the established principle of international 
law condemning intervention. He noted that many writers thought it not inter- 
vention "to force a state, either by reprisals or the force of arms, to fulfill its in- 
ternational obligations or to compensate for an injustice or an insult. There is, 
then, according to these writers, coercion, violence, but not intervention."^ 

As an example of such use of force, Fauchille cited the combined action of 
Great Britain, Spain and France against Mexico in 1861 to obtain compensa- 
tion for injuries to their nationals and to ensure the fulfillment by Mexico of 

15 



Forcible Protection of Nationals Abroad 



contractual obligations vis-a-vis the respective governments. 70 In addition, 
Fauchille cited the combined action against the Chinese during the Boxer Re- 
bellion in 1900 to protect the diplomatic representatives and nationals of the 
countries concerned, 71 as well as the 1902 blockade of Venezuela by Great Brit- 
ain, Germany and Italy to obtain payment on behalf of their nationals who were 
victims of civil wars in Venezuela. 72 Thus the views of Fauchille represent a fur- 
ther recognition of the right of forcible protection at the levels of both theory 
and State practice. 

M. Hyde. Recognition of the right of forcible protection is evident in the work 
of Charles Cheney Hyde, writing in 1922. ' 3 Starting from the premise that forc- 
ible intervention by one State in the affairs of another was illegal, Hyde recog- 
nized several exceptions, including self-defense and the protection of 
nationals.' 4 With reference to the latter principle, Hyde wrote that "[i]f it can 
be shown . . . that . . . acts [of a foreign State] are immediately injurious to the 
nationals of a particular foreign State grounds for interference by it might be 
acknowledged." 75 It is interesting to note, however, that Hyde seemed to prefer 
collective, rather than individual, measures to accomplish such interference. 
"It is the mode of collective interference, through an established agency . . . 
which characterize [s] the existing tendency and afford [s] hope of the develop- 
ment of a sounder practice than has hitherto prevailed." 76 Hyde's principle of 
"collective interference" proved to be the cornerstone of present day United 
Nations and NATO actions throughout the world. 

Hyde noted several instances in which U.S. military forces have engaged in 
such interference for the protection of nationals, notably the collective mea- 
sures in the Boxer Rebellion in 1900, 77 the unilateral action of U.S. naval forces 
in the punishment of natives on Formosa in 1867, 78 and the landings of U.S. 
forces in Nicaragua and Honduras in 1910 and 191 1. 79 A common element 
present in most of the cases noted by Hyde was that such landings were on "for- 
eign territory which, in most instances, has been that of a country not familiar 
with European civilization, and not, at the time, recognized for all purposes as a 
member of the family of nations. 80 This comment suggests that, in Hyde's view, 
forcible protection was easier to justify in instances involving acts in States not 
adhering to the standards of conduct observed by the more "advanced" Euro- 
pean States. 

N. Winfield. In his discussion in 1924 of both valid and invalid grounds for in- 
tervention in international law, Winfield, an Englishman, rejected as unsound 
the use of nationality as a justification for intervention. He observed that such 

16 



The Traditional Writers on International Law 



arguments tend to present themselves in two forms: "(i) Where the interveners 
are of a nationality identical with that of the party for whose benefit they inter- 
vene . . . [and] (ii) Where the grievance is not that there exists such an identity 
as between the interveners and the party, but that it is lacking as between the 
latter and the State of which it forms a constituent part and from which it seeks 
violently to dissociate itself." 81 

As to the first, Winfield saw only a moral justification, as international prac- 
tice did not recognize any legal justification. He cited the intervention of Vic- 
tor Emmanuel II and Garibaldi in Sicily in 1860 in this regard. 82 As to the 
second, Winfield similarly saw no legal justification, citing two serious objec- 
tions to its validity. The first was that, if admitted "war might be raised in every 
corner of the world in its vindication." 83 Second, Winfield argued, " [i] t is prob- 
lematical whether a single one of the above interventions would . . . benefit any 
of the assisted races, much more whether the remote and doubtful good to be 
derived from them would outweigh the evils of what must almost certainly 
prove a long and bloody struggle." 84 

Thus, while it is somewhat unclear whether the situations posited by 
Winfield exactly correlate with the right of protection situations discussed by 
other writers, his general conclusion as to the doctrine's invalidity certainly is 
in marked contrast to their views. 

O. Offutt. In his study of instances in which the armed forces of the United 
States have been used for the protection of U.S. nationals and their property 
abroad, Milton Offutt, writing in 1928, offered a brief discussion of the interna- 
tional legal principles justifying such use of force. He began by noting the obvi- 
ous, namely, that "[t]he right of a state to protect by force its citizens living in a 
foreign country when sudden disturbances in the foreign state threaten the 
safety of their lives and property, and when the government under whose juris- 
diction they reside has shown itself unable or unwilling to afford them reason- 
able protection, is a question which has engaged the attention of most writers 
on international law." 85 

His analysis, like that of most previous writers, 86 concluded that, when 
viewed as "non-political" intervention, the use of force for the protection of na- 
tionals may be justified. Thus, Offutt observed that "[w]hen, however, the dis- 
tinction between political and non-political intervention has been appreciated, 
some authorities have held that the use of force for the protection of its citizens 
abroad becomes not only a right but, in certain cases, a duty of a sovereign 
state; and that the state against which such force is used may not justly consider 
itself aggrieved." 87 In support of this assertion, he relied upon a number of the 

17 



Forcible Protection of Nationals Abroad 



authorities discussed previously in this chapter, including Oppenheim, Bonfils, 
and Pradier-Fodere. 88 

P. Dunn. Frederick Dunn, writing in the decade preceding World War II, of- 
fered another perspective on the right of forcible protection. 89 Although the 
central focus of his work was on a State's right to protect its nationals abroad 
diplomatically, he did recognize the existence of a right to forcible protection in 
certain circumstances. "It is only occasionally," observed Dunn, "where aliens 
are placed in a situation of grave danger from which the normal methods of di- 
plomacy cannot extricate them, or where diplomatic negotiation for some 
other reason is believed to be useless, that forceful intervention is apt to take 
place." 90 

Although there can be detected in Dunn's work an undercurrent of disap- 
proval of this type of forcible self-help, he recognized its validity given the exist- 
ing international legal and political context. According to Dunn, u [i]n the 
present stage of organization of the international community, the enforcement 
of legal obligations is still left in large measure to the individual states, i.e., to 
what is called 'self-help' (a situation that naturally favors the stronger as against 
the weaker states) . Armed intervention is only one of various means of en- 
forcement that have been developed." 91 

Thus, although the primary focus of Dunn's work was on the right to diplo- 
matic protection, he recognized the existence of a right of forcible protection in 
cases where the former proved ineffective. It is important to note, however, 
that Dunn viewed this right not as an absolute one, but as one formed from the 
exigencies of the existing international legal and political system. 

Q. Hindmarsh. Representative of the thought on forcible protection of nation- 
als abroad in the decade preceding World War II are the observations of Hind- 
marsh writing in 1933. 92 His analysis was two-fold, the first step being a 
recognition of the frequent use of military and naval forces to accomplish such 
protection, and the second step being an exposition and critique of the interna- 
tional legal principles allegedly justifying such actions. 

Hindmarsh recognized that "[t]he use of military or naval force against an 
offending state to compel recognition oi alleged international obligations has 
been a frequent practice of powerful states." 93 As examples, he singled out as 
representative a number of instances of forcible protection by the United 
States, particularly those instances analyzed by Offutt. 94 In addition, however, 
Hindmarsh pointed to the actions of other powerful States of the day, including 
the Italian bombardment of the Greek island of Corfu in 1923 95 and the 

18 



The Traditional Writers on International Law 



Japanese occupation of Chinese territory in Manchuria in 193 1. 96 Hindmarsh 
concluded his survey of State practice with the sound observation that "[only] 
in a very primitive stage of law can such self-help sanctions be tolerated. Their 
exercise permits the confusion of law and vengeance, evades impartial judg- 
ment, and retards the free development of an international legal system. The 
continuation of self-help in modern international law is as much an anachro- 
nism as private vengeance in the legal relations of individuals." 97 

Hindmarsh's analysis of the legal underpinnings of the right of protection 
was characterized by his rejection of precedent as a justification for the contin- 
ued validity of the right of protection in the modern international political and 
legal system. 

Measures of force short of war were constantly employed during the 
Nineteenth Century and were justified as reprisals. Thus, after a century of 
practice the validity of such measures became recognized as part of customary 
international law. States which employed reprisals defended them as necessary, 
ultimate sanctions, short of war, for the enforcement of international rights. 
Finally, the practice of reprisals received some support from vague theoretical 
concepts such as the rights of existence, self-defense, and independence. Thus 
custom, necessity, and fundamental right were appealed to in order to justify 
continued resort to State self-help in time of peace. Little thought was given by 
jurists to the possibility that new conditions of international life might render 
custom obsolete and devoid of practical justification, that new and more effec- 
tive means of enforcing law might be found, and further, that fundamental 
rights are always conditional upon fundamental duties. 98 

Hindmarsh argued that such a rationale, while applicable to the Nineteenth 
Century system of independent political units, was no longer appropriate in a 
System increasingly characterized by interdependence rather than independ- 
ence among States. Accordingly, in his view, the development of an interna- 
tional organization to settle disputes among States, rather than the Nineteenth 
Century principles of unilateral forcible self-help, would best serve modern in- 
ternational legal and political conditions. 99 

R. Accioly. Yet another pre-World War II view of the right of protection was 
that of the Brazilian jurist Accioly, writing in 1940. 10 ° Following a traditional 
exposition of the right of a State to protect its nationals abroad through 
diplomacy, Accioly proceeded to discuss a State's remedies when such diplo- 
matic efforts fail. "Should the local authorities declare themselves powerless to 
grant the claimed protection or demonstrate their indifference to the claims, 
an international conflict may arise; and if there is shown the impossibility of an 

19 



Forcible Protection of Nationals Abroad 



amicable solution to the dispute, the claimant State has the right of recourse to 
coercive measures." 111 

Thus, Accioly, on the eve of World War II, demonstrated the continued ac- 
ceptance of the broad right to use forcible protection, not limited to situations 
wherein the lives and property of a State's nationals were immediately at risk. 

As the preceding discussion reveals, the juridical underpinnings of interna- 
tional legal principles justifying the use of force to protect nationals and their 
property abroad are rooted in the writings of the "classical" writers on interna- 
tional law, given the many references to the views of Grotius relative to the im- 
portance of the citizen to the State and the right of one State to enforce its 
rights against another State, by force if necessary. 102 

Similarly, Wolffs thoughts, particularly with reference to the validity of the 
use of force to enforce a State's rights, 103 also have influenced many of the later 
writers on the subject of forcible protection. 104 Vattel's position on the State's 
obligation to protect its citizen, albeit limited by a concern for the rights of 
other States, 105 finds restatement in the views of subsequent writers on the pro- 
tection of nationals abroad. 106 

From this cursory survey of some of the leading publicists, there can be seen 
the gradual development of a principle justifying the forcible protection of na- 
tionals and their property abroad. Nevertheless, by the outbreak of World War 
II the desirability of forcible protection was being questioned by a growing 
number of writers. 

NOTES 

1. 2 R. Phillimore, International Law 24 (1854). 

2. Id. at 25. 

3. Id. 

4. Id. at 26. See the similar views of Pradier-Fodere at note 21 infra. 

5. Id. 

6. 42 Brit. & For. State Papers 385 (1852). 

7. Id. 

8. J. M. Bluntschli, Le Droit International Codifie 223 (1874) (author's translation). 

9. Id. at 223 n.l. 

10. Id. See the discussion of this incident at page 27 infra. 

11. Id. 

12. Id. at 224. 

13. Id. at 224 n.l. 

14. H. Bonfils, Manuel de Droit International Public 159 (1894) (author's translation). 

15. Id. at 158. See discussion of this incident at page 25 infra. 

16. Id. See the discussion of this incident at page 26 infra. 

17. Id. at 158-59. 

20 



The Traditional Writers on International Law 



18. Id. at 159. See note 6 supra. 

19. Id. 

20. Id. See the discussion of this incident at page 29 infra. 

21. F. Pradier-Fodere, Traite de Droit International Public 614 (1885) (author's 
translation). 

22. Id. at 615. 

23. Id. at 619. See the similar views of Phillimore at note 1 supra. 

24. Id. at 620. 

25. Id. at 629-30. See the discussion of this incident at page 29 infra. 

26. Id. at 630. 

27. 1 J. Westlake, International Law 313 (1904). 

28. Id. at 314. 

29. Id. 

30. Id. at 314-15. 

31. Id. at 216. For the views of Bluntschli, see note 8 supra. 

32. Id. at 317-18. 

33. 1 L Oppenheim, International Law 374 (1905). 

34. Id. at 374 n.3. 

35. Id. at 375. 

36. Id. 

37. Id. 

38. J.B. Moore, American Diplomacy (1905). 

39. Id. at 131. 

40. Id. 

41. Id. at 132-67. 

42. C. Stockton, A Manual of International Law for the Use of Naval Officers 143 (1911). 

43. Id. at 139-41. For a more detailed discussion tracing the development of United States 
Navy Regulations authorizing the use of force to protect United States nationals abroad, see 
Appendix II infra. The regulations in force at the time Stockton published his book may be found 
at pages 210-12 infra. 

44. Id. at 143. For a similar discussion justifying forcible protection in underdeveloped 
countries, citing the examples of the Boxer Rebellion and revolutionary disturbances in Latin 
America, see Root, The Basis of Protection to Citizens Residing Abroad, 4 Am. J. Int'l L. 517 
(1910). 

45. J. Clark, Right to Protect Citizens in Foreign Countries by Landing Forces (3d rev. ed. 
1934) (quotes identical to 1912 edition). 

46. Id. at 24. 

47. Id. at 25. 

48. Authorities relied upon by Clark include Bluntschli, Bonfils, Pradier-Fodere, 
Phillimore, Oppenheim and Westlake. See id. at 25-34. 

49. Id. at 25. 

50. H. Hodges, The Doctrine of Intervention 58 (1915). 

51. Id. at 58-59. 

52. Id. at 58. 

53. Id. at 66. 

54. Id. at 65-74. 

55. Id. at 74 (emphasis deleted). 

56. Id. at 74-75. 



21 



Forcible Protection of Nationals Abroad 



57. Id. at 78-80. 

58. Id. at 75-80. 

59. E. Borchard, The Diplomatic Protection of Citizens Abroad 448 (1915). 

60. Id. See J. Clark, supra note 45, at 24. 

61. E. Borchard, supra note 59, at 449. 

62. Id. at 451. 

63. Id. at 450. 

64- Id. at 452. See the discussion of this incident at pages 31-32 and 141-42 infra. 

65. Id. This incident is discussed in Appendix I, at page 149 infra. 

66. Id. 

67. Id. 

68. Id. 

69. 1 P. Fauchille, Traite de Droit International Public 582 (1922) (author's translation). 

70. Id. See the discussion of this incident at page 26 infra. 

71. Id. at 583. See the discussion of this incident at pages 31-32 and 141-42 infra. 

72. Id. See the discussion of this incident at page 33 infra. 

73. 1 C. Hyde, International Law Chiefly as Interpreted and Applied by the United States 
(1922). 

74. Id. at 117. 

75. Id. at 121. 

76. Id. at 118. 

77. Id. at 350-51. See the discussion of this incident at page pages 3 1-32 and 141-42 infra. 

78. Id. at 352 n.l. 

79. Id. at 352 n.2. This incident is discussed in Appendix I, at pages 149-50 infra. 

80. Id. at 351-52. 

81. Winfield, The Grounds of Intervention in International Law, 5 Brit. Y.B. Int'l L. 149, 
160 (1924). 

82. Id. 

83. Id. 

84. Id. 

85. M. Offutt, The Protection of Intervention in International Law, 5 Brit. Y.B. Int'l L. 
149, 160 (1924). 

86. Id. at 160 n.2. 

87. Id. at 2-3. 

88. Id. at 3. 

89. F. Dunn, The Protection of Nationals (1932). 

90. Id. at 19. 

91. Id. 

92. A. Hindmarsh, Force in Peace: Force Short of War in International Relations (1933). 

93. Id. at 75. 

94. Id. at 75 n.l. 

95. Id. at 79. See the discussion of this incident at pages 33-34 infra. 

96. Id. at 80. See the discussion of this incident at pages 35-36 infra. 

97. Id. at 82. 

98. Id.at85. 

99. Id. at 107-08. 

100. H. Accioly, Traite de Droit International (1940). 

101. Id. at 289-90 (author's translation). 



22 



The Traditional Writers on International Law 



102. See e.g., R. Phillimore, supra note 1, at 24; J.B. Moore, supra note 38, at 131; F. Dunn, 
supra note 89, at 46-48; and A. Hindmarsh, supra note 92, at 87 n.l. 

103. Wolff, Jus Gentium 138-39 0- Scott ed. 1934). 

104. Although not cited directly, Wolffs justification for the use of force finds support in the 
works of Bonfils, Pradier-Fodere, and Oppenheim, among the authors discussed in this chapter. 

105. E. Vattel, The Law of Nations 161 0- Chitty ed. 1883). 

106. See e.g., F. Pradier-Fodere, supra note 21, at 615; 1 J. Westlake, supra note 27, at 314; 
J.B. Moore, supra note 38, at 131-32; F. Dunn, supra note 89, at 48-53; and A. Hindmarsh, supra 
note 92, at 87 n.l. 



23 



Chapter III 



State Practice During the 
Pre-United Nations Period 



The State practices reviewed in Chapter III provide the background 
against which many of the traditionalist writers based and justified their 
pronouncements of the era. 

A. French Blockade of Argentina. 1838-1 840. l Following the adoption of an ex- 
tremely restrictive import and export tariff policy by the Argentine government 
in the 1830s, many European powers whose nationals were trading with Argen- 
tina grew quite concerned. Under Article IV of the Treaty of Amity, Com- 
merce, and Navigation between Great Britain and the United Provinces of Rio 
de la Plata, signed at Buenos Aires on 2 February 1825, British merchants had 
been accorded most-favored-nation status. 2 In 1836, when a frustrated French 
diplomat trying to negotiate a similar agreement with the Argentine govern- 
ment threatened naval intervention to roll back stiff duties, as well as to rem- 
edy the alleged mistreatment and imprisonment of French nationals, 3 
Argentina responded with an even more stringent tariff law. Thereupon, 
France suspended diplomatic relations and several years later sent a fleet under 
Admiral Leblanc to initiate a blockade of the capital, Buenos Aires. The block- 
ade was lifted after two years pursuant to a Convention between France and 
Argentina that was signed on 29 October 1840. 4 While the specific claims of 
France with respect to the protection of her nationals went unmentioned, both 
States agreed to accord the nationals of each other most-favored-nation treat- 
ment in the future. 

The French blockade had a severe impact on Argentina. Between the sec- 
ond half of 1837 and the second half of 1838, imports dropped in value from 19 



Forcible Protection of Nationals Abroad 



to 4 million paper pesos. Indirectly, however, the blockade, together with an 
earlier blockade by Brazil in 1826 and a subsequent joint blockade by France 
and Great Britain in 1845, had a beneficial effect on the Argentine beef indus- 
try. When the slaughter of animals for export stopped, cattle herds increased 
greatly. Where there had been an estimated 3 to 4 million cattle in 1837, the 
heads increased to 10 to 12 million head by 1850. 5 

Although Bonfils cited this incident as illustrative of a doctrine permitting 
forcible protection, 6 from the perspective of France it appears that the block- 
ade was merely a military measure with the political and economic objectives of 
advancing France's commercial interests in Argentina. Perhaps more impor- 
tantly France was defending a "point of honor" by not submitting to the policies 
of the Argentine government. The claims o{ French nationals were of tertiary 
importance. 7 

B. Great Britain, Spain and France in Mexico. 1 86 1. 8 During the internal conflict 
ongoing in Mexico in the late 1850s, foreign nationals were indiscriminately in- 
sulted, robbed, injured, and murdered. Moreover, various financial obligations 
owed foreign nationals by the Mexican government were not met. The three 
major States that had nationals injured and debts unpaid — Great Britain, 
Spain, and France — collectively agreed in the Convention of London, signed 
31 October 1861, 9 to intervene in Mexico with forces of sufficient size to seize 
and occupy different fortresses and military positions on the coast o( Mexico. 
Article II of the Convention specified that: 

The High Contracting Parties engage not to seek for themselves, through the 
employment of the coercive measures contemplated by the present convention, 
any acquisition o( territory, nor any particular advantage, nor to exercise in the 
internal affairs of Mexico any influence tending to abridge the right of the 
Mexican nation freely to decide upon and establish the form of its government. 10 

The signatories of the Convention agreed that the expeditionary forces 
should consist of 6,000 Spaniards and 3,000 Frenchmen, with Great Britain 
contributing a naval division and a landing force of 700 Marines. 

On 14 December 1861, the Spanish fleet sailed into the harbor of Vera Cruz 
and three days later disembarked troops that entered the city. The combined 
French and British expedition arrived at Vera Cruz on 7 January 1862, and at 
once began to disembark more troops. 11 

Subsequent conferences between the three Powers revealed growing dissen- 
sion over the purpose of the intervention. France revealed intentions beyond 

26 



State Practice During the Pre-United Nations Period 



the mere exaction of damages for wrongs done to its nationals, while Great 
Britain and Spain continued to adhere to Article II of the Convention of Lon- 
don. Nevertheless, negotiations were initiated with the Mexican govern- 
ment. 12 As the negotiations proceeded, however, the lack of consensus of the 
parties to the Convention emerged. France sent substantial reinforcements, al- 
legedly to guard against any disaster to the French troops as they marched into 
the interior of the country. Additional disputes arose over France's introduc- 
tion back into the country of exiled Mexicans who had supported the prior 
monarchy in opposition to the two ruling Constitutionalists. 13 

The final rupture occurred at a conference held between the three Powers 
on 9 April 1862. Great Britain and Spain declared that, if France did not disas- 
sociate herself from the exiled Mexicans and continued to support the exiles' 
determination not to take part in pending negotiations with the Mexican gov- 
ernment, they would withdraw their troops from Mexico. When the French re- 
fused, the British and Spanish terminated their role in the intervention, 
lowering their flags at Vera Cruz at sunset on 24 April 1862. France then initi- 
ated an independent policy aimed at the installation of a French-controlled 
monarch under Archduke Ferdinand Maximilian of Austria. 14 

Both Bonfils and Fauchille cited this incident as an example of the permissi- 
ble use of force by States to rectify injustices to their nationals. 15 It does not ap- 
pear, however, that the intervening States ever justified their actions in such 
legal terms. Implicit in the Convention of London, though, was the notion that 
an intervention for such purposes was permissible if conducted within narrow 
limits. That is to say, forcible intervention to rectify wrongs was legitimate so 
long as it did not severely impair the sovereignty of the country against which 
the action was undertaken. 16 

C. Great Britain and Abyssinia. 1867- 1868. 11 Following a period of civil war, 
Theodore (Kassa) became Emperor of Abyssinia on 7 February 1855. Two Eng- 
lishmen, Walter Plowden, who later was named British Consul to Abyssinia, 
and John Bell, aided Theodore's rise to, and consolidation of, power. Both 
Plowden and Bell, however, were killed during an uprising against Theodore in 
1860. After their deaths, the Emperor began to lose hold over his army result- 
ing in his "killing and burning alive thousands in a desperate attempt to save 
face by his frightfulness." 18 

In November 1861, the British government, having scant information re- 
garding the situation in Abyssinia, decided to send Captain C. Duncan 
Cameron as Plowden's successor. 19 Upon receiving Cameron in July 1862, 20 
the Emperor told the British consul the persons that had murdered Plowden 

27 



Forcible Protection of Nationals Abroad 



and Bell had been slain and that he intended to crush the Turks and the Egyp- 
tians. 21 In a letter to Queen Victoria, Theodore suggested the establishment of 
an Abyssinian Embassy in Great Britain. 22 When this letter, delayed in the 
mails, elicited no reply, 23 Theodore took it as an insult to himself and his na- 
tion, summarily imprisoning Cameron and certain other Englishmen. 24 

In May 1864, the British government sent Hormuzd Rassam, an assistant to 
Colonel W. L. Merewether, Political Resident at Aden, to obtain the release of 
Cameron and his fellow prisoners. 25 After many delays, 26 Rassam met with 
Theodore on 28 January 1866, and the latter announced the release of 
Cameron and his companions the following day. 27 In July 1866, however, the 
King again imprisoned Cameron, along with Rassam and 60 other Europeans, 
"on the pretext that . . . [the British] Government ha[d] an intention of send- 
ing troops to make war against him." 28 

The British government responded to Theodore's actions by sending a res- 
cue expedition under Sir Robert Napier that arrived in Abyssinia in 1867. 29 
Overcoming the rugged terrain, Napier's expedition finally encountered Theo- 
dore's army at Arogee on 10 April 1868. The British, possessing modern weap- 
ons with superior firepower, soon overwhelmed Theodore's forces and entered 
the fortress at Magdala on Easter Monday, 1868. Theodore committed suicide 
upon their entry. 30 

Although the Emperor's rivals urged Napier to settle the succession, Napier 
contented himself with the rescue of the prisoners and began his march back to 
the coast. 31 When Napier left Abyssinia, in May 1868, the country immediately 
plunged into civil war among rival chieftains. 

Bluntschli cited this incident as illustrative of a "state's right and duty to 
protect its nationals abroad by all means authorized by international law," 32 
and in this case by the use of force. Great Britain, however, did not explicitly 
mention this international law argument in its ultimatum to Theodore. In- 
stead, it advanced the broad rationale that 

[i] t is impossible for the Queen any longer to endure such conduct on the part of 
your Majesty, and Her Majesty has therefore given orders that a military force . . . 
should without delay enter your dominions, and obtain from you by force a 
concession which you have hitherto withheld from friendly representation. 33 

The clear import of this language, of course, is that Great Britain considered 
its decision to use force to be a legitimate alternative to "friendly representa- 
tion" and/or diplomacy. 

28 



State Practice During the Pre~United Nations Period 



D. Great Britain in Honduras. 1873. M In the summer of 1873, Honduran forces 
under the command of a General Stracber seized the castle at Omoa, Hondu- 
ras, imprisoned the British subjects resident there and destroyed most of their 
property. In August 1873, when the British Man-of-War Niobe arrived at 
Omoa, its Captain made several demands of General Stracber, including a 
$100,000 indemnity for the losses sustained by British subjects, the immediate 
surrender of the British subjects held prisoner and a 21 -gun salute to the Eng- 
lish flag. 

General Stracber replied that the demands were unjust, as he had no money, 
was not responsible for the British subjects and that responsibility rest with the 
Honduran government. The captain of the Niobe thereupon reduced the in- 
demnity portion of the demand to $50,000, giving General Stracber until 2 
p.m. on 19 August to comply with it and the other two demands. If not satis- 
fied, the Captain warned that the Niobe would bombard the castle. When a sat- 
isfactory response was not forthcoming, the bombardment began at 3:45 p.m., 
continuing until the following day when General Stracber, at last accepting the 
British demands, turned over the British prisoners and signed a document 
binding the Honduran government to pay all the losses claimed. 

Clark listed this incident as an example of the use of force to protect nation- 
als by States other than the United States. 35 Again, although Great Britain ap- 
parently offered no international law argument in support of its use of force, the 
circumstances oi this incident illustrate the readiness with which a decision to 
employ force to protect British subjects abroad was reached, a readiness pre- 
sumably buttressed by the belief that such an action was compatible with the 
norms of international law. 

E. Great Britain and France in Egypt. 1876- 1879. 36 Under the rule of Mohamed 
Said, Egypt in 1854 granted a concession to Ferdinand de Lesseps, a retired offi- 
cial of the French diplomatic service, for the construction of a ship canal across 
the Isthmus oi Suez. The grant of the Suez Canal concession was the first epi- 
sode in an era of extravagant development and foreign speculation in Egypt. 
Egyptian rulers, in their rush to encourage foreign merchants, who supplied 
them with short-term loans and acted as import and export agents for Egyptian 
government monopolies, greatly extended the freedom of Europeans from the 
processes of Egyptian civil and criminal law. The privileged position accorded 
them naturally acted as a powerful magnet to attract persons from all over Eu- 
rope to Egypt. Between 1854 and 1874, the number of European nationals resi- 
dent in Egypt increased from roughly 15,000 to 85,000. More important than 
the numerical increase, however, was that European interests — in many cases 

29 



Forcible Protection of Nationals Abroad 



assisted by diplomatic intervention — acquired a virtual stranglehold on the 
economic lite of the country. 

Ismail, who succeeded Mohamed Said in 1863, sought simultaneously to 
modernize Egypt, to enrich his own extensive private estates and to establish 
an enlarged Egyptian Empire. He attempted to accomplish these goals with 
money borrowed from foreign merchants and through long-term loans con- 
tracted with foreign banking houses. However by 1875 Ismail's financial posi- 
tion had deteriorated so greatly that he asked the British government not only 
for assistance in managing the receipts and revenues of Egypt, but also for ad- 
vice on all financial matters. 

The British government sent, as an envoy to Egypt, the Paymaster-General, 
Stephen Cave. Cave's report recommended that a substantial loan be made to 
aid Egyptian finances. Following additional negotiations between Great Britain 
and France, which also had a large number of nationals who were creditors of 
Egypt, a joint proposal was presented to the Egyptian government, with an 
agreement being reached on 14 November 1875. Under the settlement a sub- 
stantial portion of the Egyptian debt was liquidated and British and French na- 
tionals were appointed to a number of high financial posts within the Egyptian 
government. Pradier-Fodere cited this incident as a "very striking example of 
foreign intervention in the internal affairs of another state with a view to the 
protection of the nationals of the intervening powers." 37 

Although the example follows a discussion of the right to use force to protect 
nationals, it is clear that the actions of Great Britain and France involved only 
diplomatic, rather than forcible, measures. Bonfils also referred to this incident 
in his discussion of the protection of nationals abroad. 38 For him it illustrated 
the fact that "European Governments have intervened in favor of their nation- 
als who had lent money to foreign governments, against weak states, incapable 
of resisting, but not against strong States. . . ." 39 Certainly this incident, al- 
though not illustrative oi the principle of forcible protection, indicates once 
again that strong States were inclined to intervene with weaker ones, finan- 
cially as well as forcibly, to protect the interests of their nationals. 

F. France and Portugal. 1893-1894*° Pursuant to a decree of 9 November 1893, 
the Portuguese government declared the liquidation of the Portuguese Railway 
Company, many of whose creditors were foreigners, including numerous 
French citizens. Although the decree provided that a commission was to be 
formed to direct the disposition of the company's assets, only two of its nine 
members represented the interests of the foreign creditors. Coincidentally, the 
commission's decision, published on 5 January 1894, had the effect of favoring 

30 



State Practice During the Pre^United Nations Period 



the Portuguese government and certain preferred creditors to the detriment of 
the foreign creditors. 

Frustrated by this turn of events, the French creditors asked their govern- 
ment for assistance in obtaining a fair share of the company's assets. The 
French government promptly adopted their claims and vigorously complained 
to Portugal. 41 Indeed, France went so far as to threaten the use of force should 
the wronged creditors not be compensated satisfactorily. 42 The Portuguese 
government quickly acceded to the French demands and compensated the 
French creditors in a more equitable manner. Thus, although force actually 
was not employed in this instance, it certainly was contemplated by France as 
the ultimate means of obtaining redress for its creditors. 

Bonfils referred to this incident as an example of the use by States of the 
threat of force to protect their nationals who were creditors of foreign govern- 
ments. 43 He viewed this type of protection as peculiarly susceptible to unfortu- 
nate consequences in terms of popular resentment against foreigners and the 
straining of international relations. 44 

G. Boxer Rebellion. China. 1 900. 45 The last decade of the Nineteenth Century 
was marked by violent anti-colonial agitation in China. Behind much of this 
turbulence was the Society of Harmonious Fists, or "Boxers." Although op- 
posed to Christianity and Europeans, the Boxers' prime goal was to evict the 
Manchus from the Throne and end the Ching dynasty that seemed incapable 
of preserving the Chinese Empire intact. By 1899, however, the Boxers increas- 
ingly directed their attacks against the "foreign devils," who they believed were 
the real source of China's ills. 

During the spring of 1900, attacks on foreigners in China, largely at the in- 
stigation of the Boxers, became increasingly frequent. By 9 June the threat to 
the foreign legations located in the capital, Peking, had become very real. News 
of such danger prompted the governments affected (primarily Great Britain, 
France, Russia, Germany, the United States, Japan, Italy, and Austria-Hun- 
gary) to direct their naval forces in the area of China to take any action deemed 
necessary to save the legations. Admiral Seymour, the commander of the Brit- 
ish fleet, assembled an international force of about 2,000 men on 10 June to 
proceed to Peking to defend the legations. The force made extremely slow 
progress toward Peking, however, as the Boxers had destroyed the railway lines. 
On 15 June, when it had become apparent that the relief force could advance 
no further, the decision was made to fall back to the coast. 

Meanwhile, the attacks on the legations in Peking had increased in inten- 
sity, with the German Minister having been killed. Upon hearing this news, the 

31 



Forcible Protection of Nationals Abroad 



allied military forces attacked and captured Chinese government forts at Taku 
in order to establish a coastal beachhead. Next, in mid-July, they captured the 
city of Tientsin, where another group of foreigners was endangered. The latter 
part of July and early August were spent in building up an expeditionary force 
to rescue the legations. On 4 August, a relief column, numbering about 17,000 
men, left Tientsin for Peking, arriving on 14 August, 1900. 

The aftermath of the rescue included a number of punitive expeditions to 
areas with a reputation of anti-foreignism. The most noted of the punitive mea- 
sures was the destruction of the city of Pao Ting Fu by a joint expedition of Brit- 
ish, German, and French forces. 46 Moreover, a series of trials were held to 
punish persons responsible for the atrocities committed by the Boxers. Many 
executions and fines followed. Finally, on 1 February 1901, the Boxer Society 
was dissolved and membership in any "anti-foreign" society was declared to be 
a crime punishable by death. Later that same year, China agreed to pay a large 
indemnity and to prohibit the importation of arms for a period of two years. 47 

This incident was cited by Borchard, 48 Fauchille, 49 and Hyde 50 as an exam- 
ple of the forcible protection of nationals abroad. Probably the fact that China 
was viewed as semi-barbarous by most Western States, plus the exigencies of 
the moment, accounted most directly for this use of force, which the above 
commentators all regarded as permissible under international law. 

H. Franco-Turkish Conflict. I90I. 51 During the last decade of the Nineteenth 
Century, several French creditors had difficulty with the Turkish government. 
Under a contract dated 7 November 1890, a French corporation agreed to con- 
struct docks in Constantinople. As soon as the docks were completed, how- 
ever, the Turkish government seized them without compensating the French 
builders. Negotiations between the French and Turkish governments on the 
matter proved unsatisfactory to the French. In addition, substantial loans made 
to the Turkish government by two French banking concerns went unpaid. 
Finally, the Turkish government refused to honor a concession it made in 1894 
to cede territory to a French group in return for destroying malaria-carrying 
mosquitos in an area of Turkey. 

By 1901, it had become apparent to France that diplomatic measures alone 
were not going to resolve the claims. The French government therefore de- 
cided to employ forcible measures by seizing the customs house on the Turkish 
island of Mytilini and retaining the funds and goods contained therein until the 
Turkish government honored its commitments. A French fleet was sent to the 
Mediterranean which seized and occupied the customs house on 7 November 
1901. Little force was involved in this action, since the governor of the island 

32 



State Practice During the Pre~United Nations Period 



actually acquiesced in the occupation and sent the Turkish garrison to the is- 
land's interior to avoid any encounter with the French forces. The Turkish 
government promptly agreed to the French demands and the occupation soon 
ended. 

Bonfils referred briefly to the Mytilini incident in his discussion of the fore- 
ible protection of nationals who are creditors of foreign governments. Noting 
the obvious, however, that such intervention "excites the resentment of the 
people against foreigners [and] complicates international relations." 52 Despite 
the effects of this incident, one of many, it illustrates that the use of force to 
protect nationals abroad and enforce creditor's rights in such situations was 
common at the turn of the century. 

I. Great Britain, Germany and Italy in Venezuela. 1902. As the result of civil war 
in Venezuela from 1898 to 1900, British, German and Italian nationals sus- 
tained large amounts of property damage. 53 The strenuous protests by Great 
Britain and Germany yielding no results, on 13 November 1902, the countries 
agreed on joint action. 54 In the event that Venezuela failed to accede to their 
demands, they agreed to utilize coercive measures. 55 

On 2 December 1902, the diplomatic representatives of the British and Ger- 
man governments at Caracas presented an ultimatum to the Venezuelan gov- 
ernment which made clear that in the event of an unsatisfactory response, 
forcible measures would be employed. 56 On 3 December, Italy asked to be al- 
lowed to join in the ultimatum against Venezuela as an ally of Great Britain and 
Germany, a request quickly granted. 57 The demands not having been met, on 
10 December the three States imposed a blockade under which they seized or 
disabled four small Venezuelan ships. 58 Three days later the Venezuelan gov- 
ernment, through the U.S. Embassy in London, requested arbitration of the 
claims in question, proposing certain conditions. The allies finally agreed to 
this method o( settlement. 59 

Fauchille referred to this incident as an example of the justifiable use of force 
by a State to compel another State "to fulfill its international obligations or to 
compensate for an injustice or an insult." 60 However, it does not appear that 
the three States justified their use of force in legal terms at the time. 61 

J. Italian Invasion of Corfu. I923. 62 The establishment of Albania following the 
Balkan Wars of 1912-1913 left the delimitation of its borders as one of the un- 
resolved issues facing the Great Powers when World War I commenced in 
1914. Following the war, with Albania's frontiers still unfixed and border dis- 
putes increasing, the British government proposed that a Conference oi 

33 



Forcible Protection of Nationals Abroad 



Ambassadors fix the frontiers. On 9 November 1921, that conference decided 
to delimit the Albanian borders on the basis of lines drawn up before the war, 
with a special delimitation commission to mark the borders. The commission 
arrived in Albania on 7 March 1922. The relationship of the commission and 
its Italian President, General Enrico Tellini, to the Greek government and the 
Greek delegate attached to the commission, was extremely strained through- 
out. On 27 August 1923, General Tellini and his staff were murdered near the 
Greek-Albanian frontier, in Greek territory. 

Mussolini, by then in control of Italy, instructed his ambassador in Athens to 
make "the most energetic protests" to the Greek government. Following sev- 
eral communications with the Ambassador, on 29 August Mussolini issued a 
series of demands to the Greek government. These demands included an apol- 
ogy by the highest Greek military authority, a funeral service in the Roman 
Catholic Cathedral in Athens to be attended by all the members of the Greek 
government, a criminal investigation to be completed within five days after the 
arrival of an Italian military attache, capital punishment for those persons re- 
sponsible for the murders, an indemnity of 50 million Italian lire payable within 
five days; honor to be shown the Italian flag, and military honors to be paid to 
the corpses on the occasion of their transfer to an Italian vessel. 

The following day the Greek government rejected the bulk of these de- 
mands, specifically, the investigation by the Greek authorities, capital punish- 
ment for the murderers, and the indemnity. Orders were issued immediately 
from Rome to Admiral Emilio Solari, commander of the Italian navy, "to pro- 
ceed at once to the occupation of [the Greek island of] Corfu." 63 On 31 Au- 
gust, Italian naval units bombarded and occupied the island, an occupation 
lasting until 27 September 1923. 

Hindmarsh cited this incident as an example of the practice of powerful 
States to employ military force against offending weaker States to compel rec- 
ognition of alleged international obligations. 64 The incident, on its facts, in- 
volved a "point o( honor" in the protection of nationals abroad, all that 
remained following their murder. 

K. French Bombardment of Damascus. I925. 65 The peace settlement following 
World War I included the division of parts of the Ottoman Empire into 
"mandates" of the League of Nations under the tutelage of the victorious allies. 
One such area was Syria, which was placed under French control until such 
time as it was deemed ready to take its place as an independent nation. French 
rule proved oppressive to the Syrian population, however, and the resulting 
discontent led to full-scale revolution in 1925. 

34 



State Practice During the PreAJnited Nations Period 



Originating with the Druzes, a fiercely nationalistic sect living in the moun- 
tains southeast of Damascus, the revolt quickly gained momentum. By 18 Oc- 
tober 1925, Damascus was severely threatened, the revolutionaries having 
entered and occupied a part of the city. 

At this point the French authorities, "without notice or declaration of martial 
law, and without warning to foreign residents other than French," 66 first evacuated 
French troops and then proceeded to bombard the city with artillery and aircraft. 
The bombardment, which continued for 24 hours and caused extensive damage, 
ceased only when the city officials agreed to pay an indemnity of £100,000 in gold 
and 3,000 rifles. The indemnity, in fact, never was paid. The bombardment so in- 
creased the resistance of the rebels that the revolt was not put down until 1927. 

Bowett has cited this incident as a classic example of a reprisal, distinguish- 
ing it from the use of force to protect the lives and property of nationals abroad, 
which he characterizes as a permissible action of self-defense. 67 The justifica- 
tion offered by France at the time centered on the contention that the Druze 
rebellion was merely "banditry and brigandage," and hence any measures used 
to suppress it were merely police actions clearly within the exclusive jurisdic- 
tion of France, the legally constituted authority in Syria. 68 France cited no 
other principle of international law to support its actions. In fact, since no 
French nationals were being protected by the use of force, it seems apparent 
that France was merely re-establishing its control of the city in accordance with 
its mandate by the League of Nations. 

L. japan and China. 193 1 - 1932. 69 On 18 September 1931, an explosion oc- 
curred on the Japanese-owned South Manchurian Railway in southern China. 
The Japanese argued that Chinese soldiers had caused the incident, a plausible 
(albeit actually untrue) claim because at the time there was serious friction be- 
tween the Chinese and Japanese in the Japanese-leased territory along the rail- 
way zone. Additionally, the Chinese authorities' desired the reduction and/or 
elimination of Japanese interests in Manchuria. Within 24 hours after the ex- 
plosion, Japanese forces occupied Mukden and several other important towns 
in South Manchuria. 70 

The Japanese army, which soon controlled all of Manchuria, proceeded to 
set up an "independent" State of Manchukuo with a former Emperor of China 
at its head. On 25 August 1932, the Japanese government recognized the State 
of Manchukuo and concluded a treaty of alliance with it. The Manchukuo gov- 
ernment assumed control over the custom houses of its ports and thereby be- 
came self-sufficient. The League of Nations formed an investigatory body, 
named the "Lytton Commission," to investigate the situation. It issued a report 

35 



Forcible Protection of Nationals Abroad 



on 1 October 1932, condemning the Japanese invasion as an illegal act of ag- 
gression in violation of the Covenant of the League of Nations. 71 

The Japanese government responded to these charges of aggression with 
several arguments, 72 one of which was that the purpose of the invasion was 
merely to protect Japanese nationals and treaty rights in China. To support this 
claim, the Japanese government asserted not only that such a use of self-de- 
fense was recognized as an accepted principle of customary international law, 
but also that it was not prohibited by the Kellogg-Briand Pact of 1928 that out- 
lawed war as an instrument of national policy. 73 

Hindmarsh concluded that the Manchurian invasion illustrated the im- 
proper use of the forcible protection rationale by powerful States as a tool to 
achieve control over weaker States. 74 His characterization proved correct 
given Japan's subsequent resort to the "forcible protection" argument in the 
face oi facts rather clearly indicating that its motives were essentially aggres- 
sive, and by Japan's subsequent actions leading up to, and during, World War II. 

M. Germany in Czechoslovakia. I938.' 5 Coincident with the rise of Nazism in 
Germany in the 1930s was an intense nationalism on the part of the German 
ethnic community in the Sudetenland, an area of Czechoslovakia. Beginning 
in 1937, Germany's support for the "Sudeten Germans" became increasingly 
overt. In April 1938, at Berlin's urging, the German nationalist party in 
Czechoslovakia presented the Czech government with a number of demands, 
popularly known as the "Karlsbad Program," relating chiefly to autonomy for 
the Sudetenland. Following the Czech government's rejection of these de- 
mands, Germany began to escalate its propaganda attacks against Czechoslo- 
vakia for alleged mistreatment of its German ethnic minority. 

During the next several months, intense negotiations were conducted between 
Germany and Czechoslovakia and the latter's allies, Britain and France. This diplo- 
matic activity culminated in the Munich agreement of 30 September 1938. Czecho- 
slovakia ceded the Sudetenland to Germany and the Western governments of Great 
Britain and France acknowledged that Czechoslovakia was both politically and eco- 
nomically within Germany's sphere of influence. Confronted by a strong neighbor 
and with weak allies, the Czech government and its armed forces had little alterna- 
tive but to acquiesce in the German demands. German troops subsequently entered 
and occupied the Sudetenland on 1 October 1938, meeting no resistance. 

The Munich crisis clearly illustrates the abuses to which the principle of forc- 
ible protection may be put. 76 Indeed, as Brownlie has argued, the crisis was one of 
several incidents that led to the drafting of Article 2(4) of the United Nations 
Charter — which purports to prevent States from using force for such purposes. 77 

36 



State Practice During the Pre-United Nations Period 



NOTES 

1. An extensive discussion of the French blockade of Argentina may be found in J. Cady, 
Foreign Intervention in the Rio de la Plata: 1838-50, at 22-91 (1929). See also Y. Rennie, The 
Argentine Republic 54-55 (1945); H. Ferns, Britain and Argentina in the Nineteenth Century 
241-80 (1960). 

2. 3 L. Hertslet, Commercial Treaties 44, 45 (1841). Cady stated that this treaty placed 
British merchants "on a status of absolute equality with Argentine citizens in the matter of 
trading privileges, port and tonnage dues, etc." J. Cady, supra note 1, at 18. 

3. According to Cady: 

[t]he specific claims . . . were neither numerous, important, nor particularly well 
founded. Two of them concerned instances of enforced service in the Argentine army. 
Another was the case of a French sutler in [the Argentine] army . . . who had been 
summarily imprisoned for six months for possession of property belonging to the 
Government. The most serious claim was that of the widow of a Swiss printer named 
Bade, claiming French protection, who died at his home in January 1838, from illness 
contracted while serving a prison term for revolutionary intrigue. A fifth concerned 
an acknowledged claim of a French citizen named Despony, who had sustained, in the 
disorder of 1821, considerable damage to his business. 

Id. at 26-27. 

4. Convention Between France and Buenos Ayres for the Settlement of Differences, Oct. 
29, 1840, 29 Brit. & For. State Papers 1089 (1840-1841). 

5. Y. Rennie, supra note 1, at 55. 

6. H. Bonfils, Manuel de Droit International Public 158 (1894). 

7. "The particular merits of the claims were never . . . the primary subject of the dispute. . . . 
With a will for peace on either side, a settlement might easily have been arranged; in reality, it 
became a point of honor with each party not to surrender to the formal demands of the other." J. 
Cady, supra note 1, at 27. 

8. A detailed discussion of this incident may be found in J. Musser, The Establishment of 
Maximilian's Empire in Mexico chs. 1-4 (1918). 

9. Convention Between Great Britain, Spain and France Relative to Combined 
Operations Against Mexico, Oct. 31, 1861, 51 Brit. &For. State Papers 63 (1860-1861). 

10. Id. at 64 (author's translation). 

11. J. Musser, supra note 8, at 33. 

12. The terms of the joint note were vague. Its apparent purpose was solely to open 
negotiations with Mexico. See 53 Brit. &For. State Papers 411-12 (1862-1863). 

13. J. Musser, supra note 8, at 41. 

14. Id. 

15. See H. Bonfils, supra note 6, at 158; 1 P. Fauchille, Traite de Droit International Public 
582 (1922). Both authors noted, however, that France's subsequent conduct constituted 
"flagrant intervention." 

16. J. Musser, supra note 8, at 16. 

17. A detailed description of the British intervention in Abyssinia may be found in F. Myatt, 
The March to Magdala: The Abyssinian War of 1868 (1970). See also A. Jones & E. Monroe, A 
History of Ethiopia 129-34 (1970); A. Moorehead, The Blue Nile 257 (1962). 



37 



Forcible Protection of Nationals Abroad 



18. A. Jones &. E. Monroe, supra note 17, at 29. 

19. See 53 Brit. & For. State Papers 51-54 (1852-63); 54 id. at 1 153-55 (1863-64). 

20. 55 id. at 1423 (1864-65). Cameron was delayed in reaching Gondar, where Theodore 
resided, when the Foreign Office ordered him to accompany the Duke of Saxe Coburg on an 
excursion into the northern frontier of Abyssinia. 

21. 53 id at 55. 

22. Id. at 62-63. 

23. Cameron, who was to deliver the letter, was stopped on his way to the coast by a rebel 
chief in Tigre. The stop delayed the transmission of the letter, which did not reach Great Britain 
until February 1863. 55 id. at 1424. Rather than responding to the letter, the British government, 
apparently uneasy about an alliance with Theodore in a crusade against Islam, chose a "course of 
masterly inactivity." See F. Myatt, supra note 17, at 38-39. 

24. Cameron had returned to Gondar in July 1863. Id. 

25. Rassam arrived at Massowah in August 1864, and dispatched two letters to Theodore 
requesting an audience with the Emperor in Gondar. Id. at 1425. 

26. Theodore did not respond to Rassam until August 1865. The latter was further delayed 
when he was ordered to Egypt for instructions. Id. 

27. 60 id. at 1036-37 (1869-70). 

28. Id. at 1066. The Emperor apparently had heard that "a railroad had been laid down 
between Egypt and Kassala, for the purpose of transporting British, French and Turkish troops 
thereon, for the purpose of invading Abyssinia." Id. at 1067. 

29. Id. at 1088. 

30. A. Jones & E. Monroe, supra note 17, at 133-34. 

31. The victorious troops plundered Magdala "in the best traditions of the British Army at 
the time." Apparently little of the loot remained in private hands, however, for the only 
practicable way out of the fortress was "in the hands of the provost, backed by a guard of the 33 rd 
Regiment." F. Myatt, supra note 17, at 165. The loot was auctioned for a total of 5,000 British 
pounds, which was then distributed to the soldiers according to rank. A. Moorehead, supra note 
30, at 272. Upon his departure from Magdala on 17 April 1868, Napier ordered the fortress to be 
mined with explosives; by the next morning it had burned to the ground. Id. at 271. 

32. M. Bluntschli, Le Droit International Codifie 223 (1874) (author's translation). More 
recent scholars have criticized this use of force in view of the apparent lack of proportionality 
between the injuries suffered by the imprisoned Europeans and the substantial loss of life 
inflicted upon the Abyssinians by the British. See A. Moorehead, supra note 17, at 258, and 
Farer, Humanitarian Intervention: The View from Charlottesville, in Humanitarian 
Intervention and the United Nations 149 (R. Lillich ed. 1973). On this issue of proportionality, 
however, it should be kept in mind that mid-Nineteenth Century Ethiopia was not an area to 
which one could send a few troops to rescue imprisoned nationals. The distance and terrain 
probably justified the sending of a force the size of Napier's, if not all of its actions once it arrived 
in Ethiopia. 

33. 60 Brit. & For. State Papers 1088 (1869-1870). 

34- For a description of this incident, see Correspondence Respecting the Bombardment of 
the Fortress of Omoa, Honduras, by the British Man-of-War Niobe, the 19th and 20th of August, 
1873, 67 id. 959-60(1875-1876). 

35. J. Clark, Right to Protect Citizens in Foreign Countries by Landing Forces 37 (3d rev. ed. 
1934) (quotes identical to 1912 ed.). 

36. A description of Egypt during this period may be found in J. Marlowe, Cromer in Egypt 
ch. 1 (1970). 



38 



State Practice During the Pre-United Nations Period 



37. F. Pradier-Fodere, Traite de Droit International Public 628-29 (1885) (author's translation). 

38. H. Bonfils, supra note 6, at 159. 

39. Id. (author's translation) . 

40. For a brief discussion of this incident, see Chronique des Faits Internationaux, 1 Rev. 
Gen. de Droit Int'l Pub. 291 (1894). 

41. Id. at 294, citing the Statement of Foreign Minister Casimir-Perier of March 9, 1894. 

42. Id., citing the Letter of M. Edmon Villey of January 10, 1894. 

43. H. Bonfils, supra note 6, at 159. 

44. Id. at 160. 

45. A detailed discussion of the Boxer Rebellion may be found in L. Giles, The Siege of the 
Peking Legations (L. Marchant ed. 1970). See also V. Purcell, The Boxer Uprising: A 
Background Study (1963) and the factual summaries of the U.S. role in the intervention 
contained in Appendix I, at pages 141-42. 

46. W. Martin, The Siege in Peking 139-40 (1900). 

47. Settlement of Matters Growing Out of the Boxer Uprising (Boxer Protocol), Sept. 7, 
1901, 1 C. Bevans, Treaties and Other International Agreements of the United States of 
America 1776-1949, at 302 (1968). 

48. E. Borchard, The Diplomatic Protection of Nationals Abroad 452 (1915). 

49. 1 P. Fauchille, supra note 15, at 583. 

50. 1 C. Hyde, International Law Chiefly as Interpreted and Applied by the United States 
350-51 (1922). 

51. A detailed analysis o( this incident may be found in Moncharville, Le Coflit Franco-Turc 
de 1901, 9 Rev. Gen. de Droit Int'l Pub. 677 (1902). The facts found in the following two 
paragraphs of the text are taken therefrom. 

52. H. Bonfils, supra note 6, at 160. 

53. The British claims involved principally the destruction of British shipping and railway 
companies. See 95 Brit. &For. State Papers 1076-77 (1901-1902). The German claims involved 
injuries to German merchants and landowners through forced loans, the appropriation of 
supplies without payment, and the plundering of their houses and the devastation of their lands. 
Id. at 1 120-21. The Italian claims involved personal injuries and damage to property occasioned 
by the Civil War, as well as many claims by bondholders. See The Venezuelan Arbitration Before 
the Hague Tribunal, 1903, at 848, 851 (1905) [hereinafter The Venezuelan Arbitration]. 

54. 95 Brit. & For. State Papers at 1083-84. 

55. Id. at 1085. 

56. Id. at 1100. 

57. Id. at 1101. 

58. Id. at 1110. 

59. Id. at 1123-26. 

60. 1 P. Fauchille, supra note 15, at 582 (author's translation). 

61. The legal arguments that Great Britain, Germany, and Italy made at the subsequent 
arbitration of the dispute concerned the priority over other creditors in the claims process which 
the three States contended they deserved. See The Venezuelan Arbitration, supra note 53, at 
759,815,857. 

62. A detailed discussion of this incident may be found in J. Barros, The Corfu Incident of 
1923: Mussolini and the League of Nations (1965). The facts found in the following two 
paragraphs of the text are taken therefrom. 

63. Id. at 67. 



39 



Forcible Protection of Nationals Abroad 



64. A. Hindmarsh, Force in Peace: Force Short of War in International Relations 79-80 
(1933). 

65. For descriptions ot this incident, see G. Haddad, Fifty Years of Modern Syria and 
Lebanon 75-78 (1950); S. Longrigg, Syria and Lebanon under French Mandate 157-62 (1958); 
Wright, The Bombardment of Damascus, 20 Am. J. Int'l L. 263 (1926). 

66. S. Longrigg, supra note 65, at 159. 

67. D. Bowett, Self- Defence in International Law 99 (1958). 

68. Wright, supra note 65, at 265. Professor Wright disagreed with the French position and 
argued that international law should not countenance such a disproportionate use of force. 
Instead, he argued that a formal demand for discontinuance of the allegedly illegal acts should 
have been made and then, if such a demand had not been heeded, a monetary fine should have 
been imposed proportionate to the alleged crimes. Id. at 274. 

69. For detailed discussing of this incident, see R. Storry, A History of Modern Japan 1 86-96 
(1960), and I. Nish, A Short History of Japan 157-61 (1968). The facts found in the following 
two paragraphs of the text are taken from these accounts. 

70. The explosion and subsequent invasion were part of a plan hatched by Japanese Army 
officers, apparently without orders from the military high command, and certainly not with the 
approval of the Japanese government, whose "weak diplomacy" Japanese military leaders had 
criticized. See R. Storry, supra note 69, at 186-87. 

71. See generally Lauterpacht, "Resort to War" and the Interpretation of the Covenant 
during the Manchurian Dispute, 28 Am. J. Int'l L. 43 (1934). 

72. These arguments are discussed in W. Willoughby, Japan's Case Examined 17-67 (1940). 

73. Renunciation of War as an Instrument of National Policy (Kellogg-Briand Peace Pact or 
Pact of Paris), Aug. 27, 1928, 2 C. Bevans, Treaties and Other International Agreements of the 
United States of America 1776-1949, at 732 (1969). 

74. A. Hindmarsh, supra note 64, at 81-82. 

75. For detailed analyses of the events surrounding the Munich agreement, see J. 
Wheeler-Bennett, Munich: Prologue to Tragedy (1948), and V. Mastny, The Czechs Under 
Nazi Rule (1971). 

76. See R. Falk, Legal Order in a Violent World 161 (1968): 

To vindicate intervention under certain circumstances [including the forcible protection 
of nationals abroad] raises some serious world order problems. Any authorization of 
intervention creates a manipulative nexus that can itself be used as a justification for an 
abusive intrusion upon the legitimate autonomy of another state. An intervening state 
may claim to protect human rights so as to hide its dominant motive which is remote 
from altruism. One need only recall that Hitler explained his invasions of 
Czechoslovakia and Poland by the need to rescue German minorities from aggression. 

77. Brownlie, Thoughts on Kind-Hearted Gunmen, in Humanitarian Intervention and the 
United Nations, supra note 4, at 139, 143. 



40 



Chapter IV 



Contemporary Case Studies of United States 
Forcible Protection of Nationals Abroad 



As the views of the publicists and the evidence of State practice surveyed 
in the preceding chapters reveals, traditional international law has 
sanctioned a State's use of force to protect the lives and property of its nationals 
abroad. With the adoption in 1945 of the United Nations Charter, however, a 
new set of international norms governing the use of force emerged to challenge 
this traditional right. The impact of these norms and subsequent developments 
upon the right of forcible protection will be considered in the following 
chapter. The present chapter focuses instead upon those instances where the 
United States, in the post-Charter period, has claimed to act pursuant to such 
right. 

Although occasionally invoked by France and other States during this pe- 
riod, 1 most prominently by Israel involving Entebbe, the main instances where 
the protection of nationals rationale has been used to justify forcible protection 
since 1945, involve the United States. 

These case studies warrant extensive treatment not only because the politi- 
cal events surrounding many o{ the instances attracted great international at- 
tention. The legal debates they generated also shed considerable light on what 
one may characterize as a developing international consensus justifying the 
forcible protection of nationals abroad, on the grounds that it is a legitimate ex- 
ercise of a State's inherent right of self-defense under Article 5 1 of the UN 
Charter. 

The question then arises as to how one squares the tenets of Article 2(4), 
the broad prohibition oi the use of force, with Article 5 1 ? Can the notion of 



Forcible Protection of Nationals Abroad 



self-defense of a State be properly extrapolated to extend protection by force to 
a national living or transiting abroad? 

A. Lebanon. 1958. 

The spring of 1958 was a period of intense internal unrest for the small Mid- 
dle East country of Lebanon. By midsummer, the convergence of internal, re- 
gional and international factors produced a situation where the United States 
deemed itself compelled to mount a medium-scale military intervention in 
Lebanon which lasted just over three months. 

This brief treatment of the Lebanese crisis of 1958 will attempt to outline 
the most significant causative factors as well as the various legal explanations 
offered by the United States in support of its decision to intervene. 2 Particular 
emphasis will be given to the protection of nationals rationale, both as it influ- 
enced the initial decision to intervene and as it colored the subsequent justifi- 
cations of this action. 

Like many of the countries achieving independence during and after World 
War II, Lebanon was an artificially constructed State, in that historically it had 
no definite population or territory. An autonomous province of the Ottoman 
Empire until World War I, it originally consisted of the relatively small area 
surrounding Mount Lebanon on the Mediterranean coast. Under a Mandate 
from the League of Nations, granted in 1920, France transferred land from 
Syria to increase Lebanon to its present size. The population, always quite di- 
verse, was and to this day remains bitterly divided along religious, ethnic and 
political lines. Officially, slightly more than one-half of the population is Chris- 
tian, while several Muslim sects make up the remainder. 3 However, since the 
first and only official census was held in 1932, the continued validity of this 
breakdown is open to question. 4 

With the termination of the French Mandate in 1943, Lebanon became a 
sovereign State, its political foundation resting upon the "National Covenant," 
an "unwritten understanding, or gentlemen's agreement," between the Chris- 
tian and Muslim segments of the population. 5 Under the National Covenant, 
the contending elements agreed that " (i) the Christians would not look to the 
West for 'protection,' (ii) the Muslims would not aspire for merger with the 
neighboring Arab States, (iii) Lebanon was to co-operate with all the Arab 
States but not to take sides in Arab disputes, and (iv) political and administra- 
tive offices would be equitably distributed among the recognized confessional 
groups." 6 Pursuant to the last requirement, the President was to be a Maronite 

42 



Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



Christian, the Prime Minister a Sunni Muslim, and the President oi the Parlia- 
ment a Shi'a Muslim. 7 

Following an initial period of political instability, Camille Chamoun was 
elected President of Lebanon in 1952 as a reformist. For the next few years Leb- 
anese politics were reasonably stable and the Lebanese economy grew quite 
prosperous. 8 By 1957, however, a number of factors began to appear that ulti- 
mately led to the crisis the following year. Internally, political opposition began 
to mount against Chamoun. The parliamentary elections saw the surprising de- 
feat of many important opposition leaders. Rumors began to circulate that the 
President wanted to have the Constitution amended so that he might succeed 
himself. Charges of political corruption increasingly surfaced. The Muslims 
came to believe that they were being treated as "second class citizens" and de- 
manded a larger role in the government. As the result of these internal political 
pressures, the opposition forces that had combined to form a "National Union 
Front" renewed their efforts to oust Chamoun as President. 

Several regional developments during this period also contributed to the cri- 
sis in 1958. Relations with Lebanon's neighbor, Syria, became increasingly 
strained during the 1950s. The disagreement between the two Arab States 
stemmed primarily from Syria's adoption of socialist and nationalist policies in 
contrast to Lebanon's laissez-faire capitalism. In addition, the presence of large 
numbers of Syrian political refugees in Lebanon led to increased friction be- 
tween the States. 9 Further, by 1957 Lebanon had adopted policies and posi- 
tions varying from the ones held and taken by most other Arab States. During 
the Suez crisis, for instance, Lebanon, unlike the other Arab States, remained 
neutral and refused to sever diplomatic relations with France and Great Brit- 
ain. 10 Increasingly, Lebanon seemed to be veering in a pro- Western direction, 
in contrast to the pan- Arab approach advocated by President Nasser of Egypt 
and by the leaders of Syria. 11 

These regional stresses produced conflicting reactions in Lebanon itself. 
The Christian population regarded Arab unity as a threat to its Christian iden- 
tity. The Muslims, on the other hand, supported Arab nationalism as a means 
of bettering their position in Lebanese politics and society. As President 
Chamoun, through his public statements, increasingly became identified as an 
opponent of Arab unity, he accordingly lost what popularity he had retained 
with the Muslim population. 12 

The crisis in 1958 also was fueled by developments on the international 
level. By 1957 the United States and the Soviet Union, antagonists in the 
"Cold War," had begun to look for potential allies in the Middle East. The So- 
viet Union viewed Arab nationalism as a vehicle for gaining influence in the 

43 



Forcible Protection of Nationals Abroad 



area, while the United States, through the Eisenhower Doctrine, sought to en- 
list Middle East nations in its efforts to block Soviet inroads into the area. The 
basic thrust of the Eisenhower Doctrine, which took the form of a Joint Resolu- 
tion of Congress, was that the United States, upon the request of any State in 
the Middle East, would use its "armed forces to assist any such nation or group 
of such nations requesting assistance against armed aggression from any coun- 
try controlled by international communism...." 13 The only State to accept this 
doctrine, as it turned out, was Lebanon. 14 President Chamoun's decision in this 
regard sparked severe criticism from his opponents on two grounds. First, they 
argued that Lebanon's acceptance of the doctrine violated the National Cove- 
nant's requirement that the State remain completely neutral. Second, they ar- 
gued that it brought Lebanon's policies squarely into conflict with Egypt and 
Syria, countries which a large number of Lebanese supported. While one need 
not accept Garnet's over-generalized assertion that "the dissension stirred up 
by the proposed ideological alliance led directly to the civil war and American 
intervention a year later," 15 it cannot be denied that President Chamoun's en- 
thusiastic acceptance of the doctrine caused him more problems than it solved. 

The above internal, regional and international factors combined to produce 
an extremely volatile political situation in Lebanon by the spring of 1958. Fol- 
lowing the murder, on 8 May 1958, of Nasib il al-Matni, the editor of the lead- 
ing opposition newspaper in Beirut, the anti-Chamoun leaders called a general 
strike and a wave of violence spread throughout the country. 16 Although 
pro-government and opposition forces soon were engaged in open warfare, the 
6,000-man Lebanese army under General Chebab remained neutral. 17 To a 
large extent the army's neutrality prevented the civil strife from turning into a 
full-scale civil war. 18 

With the country in turmoil, President Chamoun on 21 May 1958, com- 
plained to the Arab League that Egypt and Syria, now comprising the United 
Arab Republic, were intervening in the internal affairs of Lebanon. 19 On the 
following day, 22 May 1958, Lebanon lodged a similar complaint before the 
United Nations Security Council. 20 Both complaints, in essence, alleged that 
the United Arab Republic was infiltrating men and arms into Lebanon, and 
that it was conducting an intense propaganda campaign aimed at the over- 
throw of the Lebanese government. When recourse to the Arab League proved 
fruitless, Lebanon, on 6 June 1958, pressed its case in the Security Council 
where Foreign Minister Charles Malik argued that: 

. . . there has been, and there still is, massive, illegal and unprovoked interven- 
tion in the affairs of Lebanon by the United Arab Republic . . .; 



44 



Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



. . . this intervention aims at undermining, and does in fact threaten, the inde- 
pendence of Lebanon . . . ; [and] 

. . . the situation created by this intervention which threatens the independence 
of Lebanon is likely, if continued, to endanger the maintenance of international 
peace and security. 21 

After a bitter debate, during which the United Arab Republic denied these 
allegations, 22 the Security Council, on 11 June 1958, adopted a resolution es- 
tablishing the United Nations Observation Group in Lebanon (UNOGIL), 
whose principal task was "to ensure that there is no illegal infiltration of per- 
sonnel or supply of arms or other material across the Lebanese borders. . . ." 23 
While UNOGIL's findings, according to an exhaustive survey of its operations, 
"indicated that the Lebanese government had exaggerated the degree of infil- 
tration that might have been taking place . . ., the Group's observations could 
not be regarded as conclusive evidence of the degree and nature of infiltration 
since its failure to achieve anything more than a highly limited access to alleged 
infiltration routes prevented any thorough investigation of the Lebanese allega- 
tions." 24 

During this period, U.S. policy towards the Lebanese crisis remained offi- 
cially "hands off." According to President Eisenhower, however, possible U.S. 
intervention was mooted as early as May 1958, when President Chamoun was 
informed that in such an eventuality "the mission of United States troops in 
Lebanon would be twofold: protection of the life and property of Americans, 
and assistance to the legal Lebanese government." 25 As a precautionary mea- 
sure, the Department of State on 16 June 1958, advised U.S. citizens against 
travel in or through Lebanon except for "imperative reasons." 26 The protection 
of its nationals clearly was secondary as revealed by President Eisenhower's de- 
scription of the atmosphere in which his 14 July 1958, meeting with Congres- 
sional leaders took place: "The time was rapidly approaching, I believed, when 
we had to move into the Middle East, and specifically into Lebanon, to stop the 
trend toward chaos. An additional factor in my deep concern was the presence 
in Lebanon of a relatively large number of American citizens whose lives might 
be endangered." 27 

The coup d'etat which took place in Iraq on 14 July 1958, triggered a rapid 
change in U.S. policy towards Lebanon. The leftist revolutionaries who took 
over the country murdered the Iraqi royal family and dragged their dismem- 
bered bodies through the streets of Baghdad. In addition, a number of Europe- 
ans, plus at least three U.S. citizens, also were murdered. 28 Fearful that the Iraqi 

45 



Forcible Protection of Nationals Abroad 



coup was the forerunner of similar coups against other pro-Western countries 
in the area, President Eisenhower now readily acceded to President Chamoun's 
renewed request for military assistance. At about 3 P.M. on 15 July 1958, nearly 
2,000 Marines in full battle gear waded ashore near Beirut. u In the unique spirit 
of the Lebanese civil war," recounts Kerr, "they were greeted at the water's 
edge by curious bathers and by soft drink vendors." 29 Although a near-incident 
occurred when the Marines moved down the highway toward Beirut, 30 skillful 
mediation by Ambassador Robert McClintock overcame this set-back. "The 
convoy proceeded into Beirut: a Lebanese army jeep in the lead, followed by 
the Ambassador's limousine flying both Lebanese and American flags and 
bearing both [General] Chehab and the Ambassador, followed finally by a con- 
tingent of American marines." 31 No shots were fired and no casualties were 
incurred. 

On the same day that US troops landed in Lebanon, legal justifications for 
their use began flowing from Washington. Although White House 
decisionmakers evidently accorded the protection of nationals aspects of the 
problem a fairly low priority, 32 a press release issued in the President's name em- 
phasized the plight of the 2,500 US citizens still in Lebanon, stating that the 
Marines had landed "to protect American lives and by their presence there to 
encourage the Lebanese government in defense of Lebanese sovereignty and 
integrity." 33 A contemporaneous Message to Congress paraphrased the above 
statement, 34 as did a subsequent radio and TV broadcast by the President that 
evening. 35 However, UN Ambassador Henry Cabot Lodge, addressing a hastily 
convened meeting of the Security Council, invoked protection of US nationals 
only as an ancillary argument. 36 Thereafter, the "protection of nationals" ratio- 
nale justifying for US intervention was heard no more. Instead, the United 
States placed exclusive reliance upon the fact that the intervention had been 
pursuant to a request from the recognized government of Lebanon, and that it 
constituted an act of collective self-defense permitted under Article 5 1 of the 
United Nations Charter. 37 

By 25 July 1958, ten days after the initial landing, "the American forces 
ashore numbered at least 10,600 men — 4000 Army, 6600 Marines — more 
than the entire Lebanese Army." 38 By 8 August 1958, the number had reached 
a peak of 14,357 troops — 8,515 Army and 5,842 Marines — from which it soon 
started to recede. 39 The troops, deployed exclusively in the vicinity of Beirut, 40 
engaged in routine patrols with their Lebanese counterparts. 41 Otherwise US 
troops saw no real action. 42 By all accounts their conduct was exemplary. Typi- 
cal are the remarks of Qubain, who mentions: 



46 



Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



. . . the great restraint which they displayed, which indeed [has] no parallel in 
modern times. In the first place, the main body of troops remained stationed 
outside Beirut. Only a very small number were assigned duty inside the city. Even 
these were restricted mainly to guard duty at such places as the harbor, American 
institutions, and certain areas where American citizens lived. Areas controlled 
by the opposition were completely out of bounds to troops whether on or off 
duty. 43 Second, at no time did Americans interfere in the internal conflict or give 
support to government forces against the opposition. American forces rigidly 
abstained from supporting one faction against another. 44 

Although occasionally the targets of snipers, the US forces held their own fire 
and inflicted no casualties upon the local population. 45 In turn, they suffered 
only two casualties, both army sergeants, one of whom was wounded and the 
second killed. 46 With a political accommodation that permitted the orderly 
transfer of power from President Chamoun to his successor worked out by 
Deputy Under-Secretary of State Robert Murphy, relative calm returned to the 
country permitting the withdrawal of all US troops during the month o( 
October. 47 The Lebanese crisis of 1958 was over. 

While some commentators have criticized the action of the United States 
on political grounds, 48 few observers have registered legal objections to the 
landing of US troops. 49 The strongest basis for their introduction into Lebanon, 
of course, was the existence of a formal invitation from Lebanon's recognized 
government. 50 The right of a State to furnish military assistance to another 
State pursuant to a request from the latter is universally recognized under in- 
ternational law. Provided that the right is not abused, as in the case of Leba- 
non, 51 it affords ample legal justification for the landing of troops. Collective 
self-defense under the United Nations Charter also justified the action taken 
by the United States. 52 It must be noted, however, that the factual basis for in- 
voking this right was questioned in some quarters. 53 

Finally, the "protection of nationals" rationale, relied upon initially by the 
United States 54 but subsequently ignored by it and most commentators as 
well, 55 arguably provided additional support for the decision to send in the 
Marines. 

Contrasting legal views about the availability of the protection of nationals 
rationale in the context of Lebanon are set out in forthright fashion in articles 
by the late Professors Potter and Wright, apparently the only two authorities to 
have considered the legal issues involved in a systematic fashion. Professor Pot- 
ter, in an article entitled Legal Aspects of the Beirut Landing, suggests that: 

47 



Forcible Protection of Nationals Abroad 



. . . [a] plausible basis tor "intervention 11 in the instant situation, as in so many 
such cases, is to be tound in the right to use force tor the protection of nationals, 
and their property, of the intervening state, in absence of ability or willingness of 
the local state to perform this function. While well established in principle, 
however, such a right obviously depends upon proof of the need for such action 
under the conditions cited. In the present case there seems to have been actual 
and serious danger to United States citizens and their interests, and some 
inability, though not unwillingness, on the part of the Lebanese Government to 
protect them. President Eisenhower did not fail to invoke this basis for United 
States action at Beirut. 56 

On the other hand, Professor Wright in The United States Intervention in Leb- 
anon, concentrates exclusively upon the UN Charter norms which he regards 
as dispositive of the case stating: 

[I]t has been suggested that the "self which must be immediately menaced to 
permit self-defensive action [under Article 51 of the Charter] includes not only 
territory but also agencies of the government and its citizens in foreign territory. 
There have been many cases in which states have landed forces in foreign 
territory to protect embassies or other government agencies, as in the Boxer 
affair in 1900, or to protect the lives of their citizens. It is difficult to bring these 
extensions within the meaning of Article 5 1 of the Charter. The United States 
has, however, referred to the protection of American citizens in the Lebanon as 
one reason for its intervention in that country. To support this contention, it 
would be necessary to show that immediate danger to government agencies or 
American citizens in the Lebanon constituted "an armed attack" upon the 
United States. 57 

Wright's remarks urge that even if US citizens had been in clear and present 
danger, their country had no right to intervene forcibly to protect them. If this 
is true, then is it necessary to revisit and redraft Art. 51 and Art. 2(4) to allow 
States to intervene with force to protect their nationals and consulates? 

To place the threat to US citizens into perspective, it must be remembered 
that for two months prior to the landing of Marines, civil strife had been ram- 
pant in Lebanon. 58 With 2,500 American nationals scattered throughout the 
country, 59 the possibility always existed that US citizens would get caught up in 
the fray. 60 

The coup d'etat in Iraq and the death of several citizens there 61 gave the 
United States all the more reason for concern over the fate of its citizens in the 
Middle East. 62 Murphy, who arrived in Lebanon several days after the first con- 
tingents of Marines, records that u [s]ince Berlin in 1945, I had not been in a 

48 



Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



more trigger-happy place than Beirut was at that time. Wild fusillades, bomb- 
ings and arson were the order of the day and more especially the night." 63 
Given this state oi. affairs, it is a happy, and indeed a near miraculous fact that 
no instances of harm to US citizens were recorded. 64 

The attitude of the US Embassy in Beirut, while admittedly self-serving to 
some extent, also affords a significant insight into the situation in Lebanon 
prior to the landing of US troops. Like all embassies, it had an emergency plan 
for such situations, which consisted of a three-phrase evacuation program. If, 
after the initial alert, 

. . . the situation further deteriorated, Phase A would be put into operation. This 
called for the voluntary evacuation at government expense of dependents o( 
members of the staff. At the same time the embassy would discreetly recommend 
that dependents of the local American community also be sent out of the 
country. Phase B called for the mandatory evacuation of all nonessential 
government personnel and their dependents, with a similar recommendation for 
the private American community. Phase C contemplated the evacuation of all 
American citizens from the crisis area. 65 

The Embassy placed Phase A into effect on 15 June, when the civil strife 
worsened, and declared Phase B operative immediately after the Iraqi coup 
d'etat. 66 Had Phase C thereafter been invoked, obviously a stronger factual 
predicate would have been laid to justify the measures of forcible protection 
subsequently taken. Yet simply because Phase C was not invoked, or just be- 
cause no US citizens actually were harmed, does not mean that on 14 and 15 
July, the key dates in question, US decisionmakers were not presented with a 
threat to US citizens sufficiently grave to justify, at least to themselves, the ac- 
tion they took. 67 

B. The Congo. 1964. 

The summer of 1960 saw the Congo (now Zaire) achieve independence 
from Belgium. Unhappily, within a week the Congolese Army mutinied against 
its Belgian officers and, following a complete breakdown of law and order, 68 
Belgium, on 10 July 1960, sent paratroopers into the country to protect the 
lives and property of its nationals and other Europeans. 69 Shortly thereafter, 
the UN Security Council, calling upon Belgium to withdraw its troops, created 
a temporary security force whose mission was to cooperate with the Congolese 
government in the restoration of order. 70 This temporary force gradually meta- 
morphosed into the United Nations Operation in the Congo (ONUC) , which 

49 



Forcible Protection of Nationals Abroad 



between July 1960 and its withdrawal on 30 June 1964 attempted the unenvi- 
able tasks of controlling civil strife, ending the secession of Katanga, the coun- 
try's largest province, and creating conditions conducive to the establishment 
of a strong and viable modern State. 71 

While ONUC achieved its second objective — ending the secession of 
Katanga — it was unable to fashion a strong central government capable of 
maintaining civil peace by the time of its withdrawal. 

Indeed, in the spring of 1964 several separate revolts had broken out, the 
most serious in the Eastern Congo, where in late May, Albertville fell to rebels. 
Thereafter events moved rapidly. On 30 June 1964, the fourth anniversary of 
the Congo's independence, the UN force withdrew and the government of 
Prime Minister Cyrille Adoula resigned. Nine days later a new government, 
headed by Moise Tshombe, took office. As the tempo of rebellion increased, 
however, the rebels on 5 August seized Stanleyville and, two weeks later, 
Paulis. Proclaiming a revolutionary regime, they named Christophe Gbenye, a 
former Minister of Interior, as President. An unending round of executions 
thereupon began, 72 during which: 

[w]ave after wave of 'intellectuals' or 'counterrevolutionaries' or 'American 
agents' were assassinated in all the main towns held by the rebels. The lack o{ 
cohesion and control permitted diverse groups to seize the occasion to liquidate 
their rivals on various pretexts. Many of the executions were public, performed 
in front of Lumumba monuments, with grotesque cruelty, including 
disemboweling of still living victims, consumption oi the heart, liver and other 
portions, and various tortures.... In Stanleyville, Paulis, and Kindu alone, the 
executions totalled close to 10,000; in all, there were probably at least 20,000. 73 

This reign of terror apparently was as purposeless as it was despicable. "The 
mediocre talents and often pathological character of [the] rebel leaders," Pro- 
fessor Young has noted, "rendered them incapable oi directing or controlling 
social tensions which they unleashed, even in the interest of consolidating 
their own newly won power." 74 

After six weeks, the tide began to turn. The forces of the central govern- 
ment, the Armee Nationale Congolaise (ANC), "reinforced by Katanga gen- 
darmes and spearheaded (in most but not all cases) by small contingents of 
mercenaries," 75 put the rebel army to rout. Seeking to snatch victory — or at 
least a stalemate — from the jaws of defeat, Gbenye announced on 26 Septem- 
ber that the approximately 1,600 foreigners remaining in the Stanleyville area, 
made up of "500 Belgians, 700 people of other European nationalities and 400 
Indians and Pakistanis," 76 would not be allowed to leave; his intention 

50 



Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



obviously was to use them as hostages for political bargaining purposes. 77 With 
the rebels thus holding "sixteen hundred trump cards," 78 a feverish round of 
negotiations began involving not only the rebels and the central government, 
but also the United States, Belgium, Kenya, an Ad Hoc Commission on the 
Congo of the Organization of African Unity (OAU) and the International 
Committee of the Red Cross (ICRC). 79 Progress was not forthcoming and ten- 
sions heightened. By early November, the ANC, continuing its advance, 
neared Stanleyville. 

When the ANC, preceded by white mercenary contingents, seized Kindu on 
6 November, the plight of the hostages worsened still further, with Gbenye pro- 
claiming that "all Belgian and American civilians would be treated as 'prisoners 
of war' in retaliation for the bombing of our liberated territory." 80 On 11 No- 
vember, during a radio broadcast, Gbenye stated that "the British, Americans, 
Belgians and Italians must get ready to dig their own graves." 81 Three days 
later, utilizing the rebel newspaper LeMartyr, he threatened that "'we will make 
our fetishes with the hearts of the Americans and Belgians, and we will dress 
ourselves with the skins of the Americans and Belgians." 82 On the same day 
Radio Stanleyville announced that Dr. Paul Carlson, a U.S. medical missionary 
held by the rebels, had been sentenced to death for espionage. 83 

The above threats, moreover, were not just rhetoric. As Ambassador 
Stevenson subsequently recounted to the UN Security Council, by mid-No- 
vember "the total of those thus already tortured and slaughtered amounted to 
35 foreigners, including 19 Belgians, 2 Americans, 2 Indians, 2 Greeks, 1 Eng- 
lishman, 1 Italian, 2 Portuguese, 2 Togolese and 4 Dutch, many of them mis- 
sionaries who had spent their lives in helping the Congolese people." 84 The 
grim prospect that other hostages would meet a similar fate was strengthened 
by a captured telegram from a rebel general to an officer in charge of the hos- 
tages that had been held in Kindu. It ended: "'In case of bombing of region, ex- 
terminate all [Americans and Belgians] without requesting further orders " 85 

With the ANC now nearing Stanleyville, negotiations reached an impasse. 
Thomas Kanza, the representative of the rebels who had been in direct contact 
with the US Ambassador to Kenya, William Attwood, made it crystal clear 
that, in Professor Grundy's words, "the rebels were not about to surrender their 
only major bargaining lever." 86 According to Attwood, Kanza would not dis- 
cuss evacuating the hostages, whom he termed "prisoners of war," until the 
ANC advance had been stopped and a cease-fire put into effect. 87 That this use 
of innocent civilians flatly violated the Geneva Conventions 88 did not bother 
the rebels, who considered themselves not bound by international agreements 
"written by whites." 89 Thus, political and legal arguments having failed, it 

51 



Forcible Protection of Nationals Abroad 



became increasingly apparent that military measures would have to be used to 
extricate the hostages from their three month ordeal. 90 

These measures actually had been put in train in mid-November when US 
military planes transported the 545-man Belgian First Paratroop Battalion to 
He Ascension, where it was quartered by the British government. 91 After fur- 
ther unavailing efforts to secure the release of the hostages, 92 the paratroopers, 
with the express authorization of the central government, 93 landed at 
Stanleyville at dawn on 24 November and undertook an emergency rescue mis- 
sion, 94 evacuating an estimated 2,000 people over a four-day period. 95 Included 
in this number were several hundred foreigners rescued during a follow-up 
landing at Paulis, 225 miles to the north. 96 The evacuees included "Americans, 
Britons and Belgians; Pakistanis, Indians, Congolese, Greeks, French, Dutch, 
Germans, Canadians, Spaniards, Portuguese, Swiss, and Italians; as well as citi- 
zens of Ghana, Uganda, Ethiopia, and the United Arab Republic." 97 

To justify US participation in the rescue operation, 98 the Department of 
State initially expressed the view that the action was taken "in exercise of our 
clear responsibility to protect United States citizens under the circumstances 
existing in the Stanleyville area." 99 At the United Nations, Ambassador 
Stevenson extended the rationale behind the action stating that, "[w]hile our 
primary obligation was to protect the lives of American citizens, we are proud 
that the mission rescued so many innocent people of eighteen other nationali- 
ties from their dreadful predicament." 100 Finally, President Johnson put the 
case in its broadest humanitarian terms when he assumed "full responsibility 
for those [decisions] made for our planes to carry the paratroopers in there in 
this humanitarian venture. We had to act and act promptly in order to keep 
hundreds and even thousands of people from being massacred." 101 

Of course, the Congo rescue operation, as the Department of State reiter- 
ated several times, was carried out "with the authorization of the Government 
of the Congo," 102 and hence, technically, was not a case of unilateral forcible 
protection at all. 103 Nevertheless, viewing the operation in its total context, it is 
hard to avoid the conclusion that the United States treated the Congolese invi- 
tation more as an additional argument justifying its action than as the sine qua 
non of its legitimacy. The statement issued by the Department of State clearly 
was designed to show not only reliance upon an express invitation by the cen- 
tral government of the Congo, but also in compliance with all the requirements 
of the traditional doctrine of humanitarian intervention. 104 

This operation is humanitarian — not military. It is designed to avoid 
bloodshed — not to engage the rebel forces in combat. Its purpose is to 



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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



accomplish its task quickly and withdraw — not to seize or hold territory. 
Personnel engaged are under orders to use force only in their own defense or in 
the defense of the foreign and Congolese civilians. They will depart from the 
scene as soon as their evacuation mission is accomplished. 

We are informing the United Nations and the Ad Hoc Commission of the 
Organization of African Unity of the purely humanitarian purpose of this action 
and of the regrettable circumstances that made it necessary. 105 

Add to this statement the acknowledged fact that both the United Nations and 
the OAU were unable to cope with a situation which by mid-November 
required immediate action, 1 and one reaches the inescapable conclusion that 
if ever there was a case justifying the forcible protection of lives, the Congo 
rescue operation was it. 

Reviewing the operation in retrospect, perhaps the United States should not 
have been as surprised as it was at the criticism heaped upon it for its role in this 
humanitarian venture. 107 In the debates that the operation engendered at the 
United Nations, the virulence of many African delegates can be attributed, in 
varying degrees, to four principal factors. 108 First, they argued that the rescue 
operation was rife with racism, in that not until the lives of the white hostages 
had been threatened did the United States become concerned, 109 and that 
while most of these hostages had been rescued hundreds of blacks had been 
slain. 110 When one considers what the world community's reaction would have 
been had the United States or other Western powers introduced troops imme- 
diately after the United Nations' withdrawal to protect those Congolese threat- 
ened by the rebels, however, such criticism must be regarded, to say the least, as 
unfair. 

Since intervening earlier to protect Congolese surely would have been 
branded as a flagrant violation of the UN Charter, this supposed option was not 
really a viable one. Accordingly, the United States should not be criticized, ei- 
ther expressly or impliedly, for failing to intervene earlier on. 111 Moreover, the 
fact that the ANC slaughtered hundreds of blacks when it reached Stanleyville 
shortly after the airdrop is no argument that racist considerations motivated 
the rescue operation itself. The paratroopers, it should be noted, evacuated 400 
Indians and Pakistanis as well as more than 200 Congolese, 112 and the ven- 
geance meted out by the ANC while mopping up Stanleyville hardly would 
have been less had it reached the city hours or days later, especially if the hos- 
tages had been massacred in the meantime. 

A second factor underlying the criticism put forth by many African dele- 
gates was the disrespect the rescue operation allegedly showed for the OAU 

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Forcible Protection of Nationals Abroad 



and its mediation efforts. 1 1 3 Coming at a time when Pan- Africanism was riding 
high on the African continent, the failure to work through the regional organi- 
zation to secure the release of the hostages engendered considerable ire. The 
airdrops, according to the delegate from the Congo Republic (Brazzaville), 
were clearly an attempt to humiliate the OAU. 114 

Such an attitude, while understandable, also is unjustified. Both the United 
States and Belgium had turned repeatedly to the OAU for assistance in obtain- 
ing the hostages release, but in every instance the OAU had proved to be either 
ineffective or uncooperative or both. This failure stemmed not only from the 
inherent weakness o{ the organization itself, but also, and perhaps primarily, 
from the resentment many African States had for the Tshombe government, a 
regime which they wished to see toppled. Given this anti-Tshombe attitude, 
the airdrops obviously would not have been approved had the United States 
and Belgium sought OAU authorization. 115 Moreover, seeking such authoriza- 
tion not only was unnecessary, given the central government's approval, 116 but 
would have removed the surprise element from the airdrops and thus, jeopar- 
dized the success of the entire rescue operation. 

The third factor causing much African criticism was the memory of colonial 
injustices still fresh in the minds of many delegates. Such memories naturally 
were exacerbated by the dropping of paratroopers of the former colonial power, 
assisted by logistical support from one of the superpowers. As Attwood, in a 
passage worth quoting at length, put it: 

We saw the Stanleyville rescue operations as a dramatic effort to save hundreds 
of helpless, innocent people. It was humanitarian, and it was necessary, since all 
other attempts to release them had failed. And the operation had to take place 
before the ANC column entered the city, for the panicky Simbas would probably 
have mowed down the hostages before fleeing from the mercenaries. 

But if you could put yourself in the shoes of an average educated African, you got 
a quite different picture. When he looked at the Congo, he saw a black 
government in Stanleyville being attacked by a gang of hired South African 
thugs, and black people being killed by rockets fired from American planes. He 
did not know about the thousands of blacks who were tortured and murdered by 
the Simbas, but he did know that the mercenaries and their Katangan auxiliaries 
left a trail of African corpses in their wake. 

Even more galling to the educated African was the shattering oi so many of his 
illusions — that Africans were now masters of their own continent, that the OAU 
was a force to be reckoned with, that a black man with a gun was the equal of a 
white man with a gun. For in a matter of weeks, two hundred swaggering white 

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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



mercenaries had driven through an area the size of France, scattered the Simbas 
and captured their capital; and in a matter oi hours, 545 Belgians in American 
planes had defied the OAU, jumped into the heart of Africa and taken out nearly 
two thousand people — with the loss of one trooper. 

The weakness and impotence of newly independent Africa had been harshly and 
dramatically revealed to the whole world, and the educated African felt deeply 
humiliated: the white man with a gun, the old plunderer who had enslaved his 
ancestors, was back again, doing what he pleased, when he pleased, where he 
pleased. And there wasn't a damn thing Africa could do about it, except yell 
rape. 117 

Just what the United States could have done to avoid this verbal at- 
tack — short of foregoing participation in the rescue operation altogether — is 
difficult to imagine. Generalities to the effect that "it should have taken greater 
account of African sensitivities" 118 are fine, but they offer little guidance to 
decisionmakers, past or present. In sum, given the legacies of the colonial past, 
the United States could not have avoided African criticism for its part in the 
rescue operation, no matter how humanitarian its motives may have been. 

Finally, the fourth factor disturbing many African delegates was the role the 
United States was playing in supporting the Tshombe government, a role 
which included the supplying of military equipment and advisers, the flying of 
intelligence and transport as well as occasional combat missions, and the gen- 
eral underwriting, through the US Embassy and the CIA, of the ANC's merce- 
nary-led efforts to reestablish the central government's authority over the 
Congo. 119 African leaders, who originally had opposed the return of Tshombe 
and subsequently had condemned his central government, naturally resented 
any bolstering of his power, which was the inevitable by-product of the rescue 
operation. 120 As Grundy observes, "Africans hostile to Tshombe's cause would 
naturally seek to discredit the legitimacy of an operation that resulted in 
Tshombe's increased power." 121 

The four factors discussed above naturally exacerbated the criticism of the 
operation leveled at the United States and Belgium during the United Nations 
debates. Replying to accusations in the Security Council that often bordered 
on and sometimes reached the slanderous, Ambassador Stevenson flatly stated 
that: 

. . . [w]e have no apologies to make to any state appearing before this Council. 
We are proud of our part in saving human lives imperiled by the civil war in the 
Congo. 

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Forcible Protection of Nationals Abroad 



The United States took part in no operation with military purposes in the Congo. 
We violated no provision of the United Nations Charter. Our action was no 
threat to peace or to security; it was not an affront — deliberate or otherwise — to 
the OAU: and it constituted no intervention in Congolese or African affairs. 122 

His views, of course, received support from Belgium 123 and Great Britain, 124 
with Bolivia, 125 Brazil, 126 and the Republic of China 127 also approving this in- 
stance of forcible protection. Admittedly, most States condemned the rescue 
operation, generally because they regarded it, in retrospect, either to have been 
counterproductive in lives saved 128 or to have served as a "pretext" for what 
they regarded as an illegal intervention in the Congo's affairs. 129 In general, 
they grounded their complaints more upon its political than its legal aspects. 130 
The vague resolution finally adopted by the Security Council, "[d]eploring the 
recent events in [the Congo]," 131 not unsurprisingly contains no official con- 
demnation of either Belgium or the United States. 132 Indeed, one writer actu- 
ally has suggested that the resolution constitutes an implied if not an express 
approval of the rescue operation. 133 

Two issues relevant to any forcible protection action for human rights pur- 
poses, and especially to the Congo rescue operation, warrant further brief dis- 
cussion. Namely, whether in the present case the operation was not 
counterproductive insofar as the saving of lives was concerned, and whether 
the operation was not used to impose or preserve a preferred government on 
the Congo. 134 

Insofar as the first issue is concerned, of the approximately 1,600 foreigners 
in the Stanleyville area only 27 were killed during the initial Stanleyville air- 
drops, and all 22 white hostages found dead at Paulis two days later had been 
killed by the rebels prior to that follow-up operation. 135 Having fled at the last 
minute, few if any of the rebels who carried out the massacre in Stanleyville ap- 
parently were killed by the paratroopers, 136 who themselves lost only one 
man. 137 The rebels and their supporters, it is true, suffered appalling casualties 
when the mercenary-led ANC troops who subsequently entered Stanleyville 
ran amok, 138 but such atrocities hardly can be attributed to the rescue opera- 
tion itself and, in any event, would have been no less severe had the ANC 
fought its way into the city without the airdrop having taken place. 

Similarly, although from the Stanleyville airdrop through the end of Decem- 
ber "more than three hundred whites, eight of them Americans, were killed"' 139 
by the rebels, these deaths, which occurred throughout the entire Eastern 
Congo, cannot be attributed solely to the rescue operation having taken 
place. 140 On balance, then, while admittedly a matter oi speculation not 

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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



susceptible of absolute proof either way, the Congo rescue operation would 
appear to have saved far more lives than it lost. 141 

Insofar as the second issue is concerned, there is little doubt, as numerous 
commentators have pointed out in their respective fashions, 142 that the rescue 
operation's success contributed to the eventual downfall of the rebel regime. 
Since the rebels, contrary to international law, were using the hostages not only 
to prevent central government attacks but also to gain time to replenish their 
depleted arsenals, the rescue operation, by its very nature and success, obvi- 
ously constituted a severe blow to their cause. However, the fact that the 
Stanleyville airdrop appears to have been coordinated with the ANC advance 
upon the city, frequently cited as authoritative evidence that the rescue opera- 
tion was undertaken for political rather than humanitarian reasons, 143 certainly 
does not overcome the strong evidence that its primary objective actually was 
humanitarian in nature. 144 The reason for synchronizing the airdrop with the 
ANC advance was to reduce casualties and to avoid the rebels fleeing with the 
hostages. "The main purpose of the coordination," concludes Weissman, "was 
to assure the safety of the maximum number of hostages with the minimum 
cost." 145 The fact that a by-product of the rescue operation was the collapse of 
the rebel regime should not be read back to taint the entire mission, which as 
Ambassador Stevenson rightly stated was designed to save human lives. 146 

C. The Dominican Republic. 1965 

On 30 May 1961, an assassin's bullet struck and killed Rafael Trujillo, dicta- 
tor of the Dominican Republic for over three decades. Trujillo's death presaged 
a period of unrest within the Dominican Republic that culminated four years 
later in violent revolution followed by forcible intervention by US (and subse- 
quently Organization of American States [OAS]) forces. The purpose of this 
case study is to assess, in the context of the facts now available, the validity of 
the initial legal justification advanced by the United States in support of its in- 
tervention, that being the need to protect the lives of US nationals. To place 
the US argument in perspective, a short description of the events preceding 
and surrounding the crisis of 1965 is required. 147 

Following Trujillo's assassination, Dominicans, in the first free elections 
held in the country in nearly 40 years, elected as their President, Juan Bosch, 
founder of the left-of-center Dominican Revolutionary Party (PRD). The Ken- 
nedy Administration welcomed Bosch's election, dispatched Vice President 
Johnson to his inauguration in February 1963, and increased Alliance for Prog- 
ress (AID) programs in an effort "to construct a 'showcase of democracy' in the 

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Forcible Protection of Nationals Abroad 



Caribbean as a contrast to neighboring Communist Cuba." 148 Bosch, unhap- 
pily, proved to be an ineffective leader once in office and soon came under 
heavy attack by opposition critics, especially for allowing Dominican commu- 
nists to return from exile and reenter political life. 149 After just seven months in 
office he was ousted by an anti-communist coup d'etat on 25 September 1963. 15 ° 

The Kennedy Administration reacted to the coup d'etat by suspending diplo- 
matic relations with the Dominican Republic and halting all economic and 
military aid. 151 Such pressures had little effect upon the three-man junta that 
had replaced Bosch, however, and by mid-December the United States, with 
the Johnson Administration now in office, reversed its policy, recognized the 
new government, and resumed foreign assistance. 152 

Despite this development, the junta, which soon came to be dominated by 
Donald Reid Cabral, an anti-communist holding decidedly conservative views, 
lost popularity steadily during 1964. Reid, in an effort to stave off domestic crit- 
icism and improve the junta's reputation abroad, scheduled "free elections" for 
15 September 1965, but his subsequent announcement that he intended to run 
for the presidency and would win constituted the "final straw." 153 By the late 
winter and early spring of 1965, only the timing and not the occurrence of an- 
other coup d'etat, this time to oust Reid, was in doubt. 154 

The uprising began in the early hours of Saturday, 24 April 1965, when "a 
small group of young colonels acting in concert with PRD leaders seized and 
imprisoned the Army Chief o{ Staff and declared themselves in revolt against 
the government." 155 The rebels, calling themselves the "constitutionalists," oc- 
cupied the government radio station in Santo Domingo, the capital, and 
broadcast appeals calling for the ouster of Reid. When thousands of civilians 
took to the streets, the constitutionalist officers passed out arms to them in an 
apparent attempt "to broaden the base of the movement and counter any possi- 
ble reaction from the bulk of the armed forces." 156 Actually, they had nothing 
to fear from the regular forces at this point, since the military's leaders, while re- 
sponding to Reid's request for assistance with pledges of support, obviously 
were waiting for the dust to settle before committing either themselves or their 
troops. 157 Certainly they did nothing to crush the uprising against Reid, and the 
latter, after an unsuccessful attempt to obtain US military intervention on the 
morning of Sunday, 25 April, 158 resigned and went into hiding. 159 

Later that afternoon, reportedly after conferring by telephone with Bosch, 160 
who at the time was living in Puerto Rico, the constitutionalists named Rafael 
Molina Urena, President of the Chamber of Deputies during Bosch's regime, as 
Provisional President. 161 Molina's subsequent announcement that he intended 
to hold office only until Bosch's return, which reflected a pro-Bosch rather 

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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



than merely the anti-Reid view held by a majority of the constitutionalists, had 
the unfortunate effect of alienating many revolutionary leaders and driving not 
a few wavering military commanders into the anti-constitutionalist (or what 
came to be known as the "loyalist") camp. For, according to Slater: 

there no longer could be much doubt that a victory of the revolution would result 
in the direct return of Bosch to the Presidency, rather than in new elections as 
had originally been planned. [ 162 ] This was another matter, for the regular 
military detested and feared Bosch, judging, undoubtedly correctly, that a 
triumphant Bosch backed by the defecting constitutionalist military and what 
amounted to a well-armed civilian militia would probably seek to destroy their 
power and position in the Dominican Republic. As a result, by late Sunday 
afternoon the bulk oi the military, particularly the key San Isidro Air Force Base 
dominated by [General] Wessin y Wessin, had decided to actively resist the 
revolution. 163 

The bombing of the National Palace and constitutionalist military encamp- 
ments by planes from the San Isidro Air Base began about 4:30 P.M., plunging 
the Dominican Republic into civil war. 164 

By the following morning — Monday, 26 April — the military situation had 
reached a stalemate and civil authority had broken down completely. While 
sensational reports of atrocities allegedly committed by the constitutionalists 
subsequently proved to be wildly exaggerated, 165 the carnage in the streets of 
Santo Domingo nevertheless was great, 166 with an estimated 2,000 people los- 
ing their lives in the fighting during a four day period. 167 The military standoff 
prompted loyalist leaders to make their first request for US military interven- 
tion, a request that the United States denied. 168 The Department of State, 
however, instructed the US Embassy "to inform both sides in Santa Domingo 
that the US government had received requests from American citizens wishing 
to be evacuated, and that the U.S. requested an immediate ceasefire to permit 
a safe and orderly evacuation." 169 Preparations for this voluntary evacuation 
operation, which had been contemplated since the uprising began, 170 com- 
menced Monday evening with the assembling and registering of US and other 
foreign nationals who wished to leave the country. Their actual evacua- 
tion — by land to the nearby port of Haina, from whence they were to be loaded 
aboard two ships of a US navy task force lying offshore, or by helicopter from 
the grounds of the Hotel Embajador to the decks of the USS Boxer — was sched- 
uled for the following day. 

On that day — Tuesday, 27 April — an unarmed detachment of about 50 
Marines was sent ashore to secure the hotel grounds, establish a helicopter 

59 



Forcible Protection of Nationals Abroad 



landing area therein, and to generally facilitate the evacuation process. All 
went reasonably smoothly and by 3: 15 P.M. the operation, which involved fer- 
rying out 1,172 of the 2,500 US nationals supposedly in the country, had been 
completed. 171 The only hitch occurred when a small band of constitutionalists 
arrived on the scene and engaged in a brief exchange of fire with unidentified 
persons on several upper story balconies o( the hotel. Then, as Slater relates, 
they suddenly "burst into the hotel, lined the Americans [gathered in the lobby 
waiting to be evacuated] against the wall, and fired a number of machine-gun 
bursts over their heads." No one was hurt, and it later turned out that the rebels 
had not been seeking deliberately to terrorize the Americans but were looking 
for an extreme right- wing propagandist who had taken shelter in the hotel. 172 
This incident, however, caused considerable concern at the US Embassy, 
whose "overwrought reporting" of it to Washington obviously influenced Presi- 
dent Johnson's thinking and strengthened the hand of those officials who al- 
ready were urging a much larger US military intervention. 173 

As the evacuation took place that Tuesday, the military tide slowly turned 
against the constitutionalists. Under continuous attack from General Wessin's 
planes since Sunday, they now had to contend with a force of tanks from San 
Isidro attempting to enter the city. Faced with impending defeat, the leading 
constitutionalists, including Provisional President Molina Urena, sought help 
from the US Embassy to mediate the conflict. Ambassador W. Tapley Bennett, 
no fan of ex-President Bosch and ever-fearful of a leftist takeover, 174 flatly re- 
fused, advising the constitutionalists to surrender. 175 Although they ignored his 
advice, a number of them, including Molina Urena, apparently conceded de- 
feat, for they immediately sought political asylum at various Latin American 
embassies. 176 One did not. Surprisingly, Francisco Caamano, a career officer 
who had served as chief of the police riot squad under Trujillo and certainly 
was not known as a Bosch supporter, after a dramatic reply to Bennett, 
rushed from the embassy to rally the constitutionalist forces opposing 
Wessin's tanks at the Duarte Bridge. 177 Miraculously, the tide turned yet 
again: the tanks were driven back, the police stations fell, and by mid-after- 
noon of the next day — Wednesday, 28 April 1 965 — the city belonged to the 
constitutionalists. 178 

During this surprising turnaround, US helicopters continued to airlift evac- 
uees from the Hotel Embajador to the Boxer. 119 As the constitutionalists solidi- 
fied their control of the city, however, Colonel Benoit, the head of a new junta 
conducting the loyalist's operations, informed Ambassador Bennett that "the 
junta was in no position to guarantee the safety of Americans or other foreign- 
ers in Santo Domingo." 180 Accordingly, "the junta was requesting a United 

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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



States intervention." 181 While the junta's formal written request, submitted 
about 4 P.M. on the afternoon of the 28th, actually made no mention of the 
need to protect US nationals, 182 Bennett relied upon this argument in his 
now-famous "critic" telegram recommending the immediate landing of US Ma- 
rines, which arrived in Washington about 5 P.M. 183 Shortly thereafter, Presi- 
dent Johnson decided to land a contingent of armed Marines, 184 536 of whom 
came ashore in the early evening. 185 In an address to the nation later that night, 
the President reported that military authorities in the Dominican Republic had 
informed the United States that the lives of its nationals were in danger, and 
that the assistance of US military personnel was necessary to guarantee their 
safety. 186 As a result, the President stated, he had ordered the Secretary of De- 
fense "to put the necessary American troops ashore in order to give protection 
to hundreds of Americans who are still in the Dominican Republic and to es- 
cort them safely back to this country. This same assistance will be available to 
the nationals of other countries, some of whom have already asked for our 
help." 187 

The following day — Thursday, 29 April — additional Marines with heavy 
equipment landed, bringing total US forces in Santo Domingo to 1,700 men. 188 
The next day military transports ferried two battalions of the 82nd Airborne 
Division to the San Isidro Air Base. They immediately took up positions along 
the east bank of the Ozama River, an area in which there were no US or other 
foreign nationals to be evacuated. 189 Yet, in his address to the nation that eve- 
ning, 30 April, President Johnson again invoked the protection of nationals ar- 
gument that he had made two nights earlier, noting that over 2,400 US and 
other foreign nationals already had been evacuated from the Dominican Re- 
public. 190 More significantly, however, the President, for the first time, ad- 
vanced a new argument for US intervention, namely, that "people trained 
outside the Dominican Republic are seeking to gain control" of the country. 
While not saying so explicitly, Johnson clearly intended to leave the impression 
that "outside" communists threatened to take over the Dominican Republic. 
In the face of this potential threat, he continued, the Organization of Ameri- 
can States (OAS) had the "immediate responsibility" to take prompt action 
to achieve a ceasefire before such an "international conspiracy" could take 
control. 191 

On 1 May, after the apparent failure of a tenuous ceasefire between the two 
opposing factions, President Johnson ordered additional troops flown in, rais- 
ing the number of US forces to 6,200. They proceeded to enter constitutional- 
ist (but apparently not loyalist) territory in an attempt to enforce the 
ceasefire. 192 Nevertheless, in a written statement issued the same day the 

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President once again maintained that the mission of the troops was solely to 
protect and evacuate US and other foreign nationals. 193 

Warning of a "tragic turn" of events, President Johnson addressed the na- 
tion for a third time the following day. The President now publicly asserted that 
the Dominican revolution had been "seized and placed in the hands of a band 
of Communist conspirators . . . [m]any of them trained in Cuba. . . ," 194 To 
counter this alleged new development, the President reported that he had or- 
dered an additional force of 6,500 men to proceed to the Dominican Republic. 
He did not attempt to justify their dispatch by continued reliance upon protec- 
tion of nationals arguments. Instead, the President proclaimed what came to be 
known as the "Johnson Doctrine," namely, that "[t]he American nations can- 
not, must not, and will not permit the establishment of another Communist 
government in the Western Hemisphere." 195 To prevent such an occurrence, 
he announced, the United States was consulting with the OAS regarding pro- 
posals for a multilateral response to this new threat posed by the Dominican 
crisis. 196 

In the event, on 6 May 1965, the OAS, which much earlier had adopted a 
resolution calling for a ceasefire and the establishment of a neutral zone 
"within which the nationals of all countries will be given safe haven," 197 ap- 
proved a US-sponsored resolution creating an Inter American Force. 198 This 
force, largely made up of US troops that numbered over 23,000 by the middle of 
May, eventually ended hostilities, established a provisional government and 
supervised general elections before finally departing the Dominican Republic 
on 21 September 1966. 199 During this time, the OAS legal umbrella, not the 
protection of nationals rationale, gradually became the principal, if not exclu- 
sive, US justification for the continued presence of its troops in the Dominican 
Republic. 200 

Whether the OAS officially legitimized or merely acquiesced in the intro- 
duction of US troops has been the subject of much scholarly debate, 201 as has 
been the legitimacy of the OAS operation itself. 202 While both issues are be- 
yond the scope of the present study — which focuses upon the current status of 
the right of forcible protection — it should be underscored that the OAS never 
criticized, much less condemned, the initial US action of sending troops to the 
Dominican Republic to protect the lives of its nationals and other foreigners. 
Nor, for that matter, did the United Nations. 203 

Criticism of the US action in general, however, was widespread. Senator 
Fulbright, Chairman of the Committee on Foreign Relations, who dramatically 
broke with President Johnson over the Dominican Republic even before he 
took issue with the latter's policy in Vietnam, argued in the Senate that the 



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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



Administration had "cooked up" an invitation to intervene on the question- 
able grounds that the lives of US nationals were endangered. 204 While admit- 
ting that "Santo Domingo was not a particularly safe place to be in the last days 
of April 1965," the Senator contended that the "danger to American lives was 
more a pretext than a reason for the massive US intervention. . . ." 205 Had the 
protection of US and other foreign nationals been the real reason for US ac- 
tion, he argued, the United States could have sent in troops "promptly and 
then withdrawn them and the incident would soon have been forgotten." 206 

Scholarly comment almost unanimously agreed with the Senator's ap- 
praisal. 207 Although regarding "[t]he initial landing of four hundred Marines 
[to be] a permissible self-defense measure to protect the United States nation- 
als," 208 Professor Nanda pointed out the obvious, that: 

the United States' action was not limited in its objective [to] protecting the lives of 
its nationals; furthermore, it was not limited in its scope or duration either. Hence, 
there are serious doubts that it met the required criterion of proportionality to 
justify the United States' claim that since it had dispatched armed forces primarily 
to protect its citizens, the United States' use o( coercive measures in the 
Dominican Republic should be considered a permissible use of self-defense. 209 

Professor Friedmann took much the same view, although his conclusion had 
a much harder edge. While acknowledging, like Nanda, that "[t]here is re- 
spectable authority for the view that the original limited intervention to pro- 
tect US citizens from imminent danger, in a situation of anarchy, did not 
violate international law," 210 he believed the massive build-up and continued 
presence of US forces in the Dominican Republic to be "patently, by standards 
of international law, an illegal action. . . ," 211 

The present writer and almost all other participants at a 1972 conference 
that subsequently debated the Dominican crisis also expressed similar views, 212 
essentially supporting the continued existence of a limited right of forcible pro- 
tection, 213 while at the same time recognizing and warning against the possibili- 
ties of the doctrine's misuse. 214 Today, three decades after President Johnson 
ordered in US troops, one still may conclude, as a minimum common de- 
nominator, that "it is far easier to justify the initial American response than 
it is the prolonged American presence in the Dominican Republic." 215 

D. Iran, 1980, 

On 4 November 1979, several hundred armed Muslim fundamentalist stu- 
dents overran the US Embassy in Tehran and took more than five dozen 

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Forcible Protection of Nationals Abroad 



diplomatic and consular staff, Marine guards and other US citizens hostage. 216 
The Iranian government did nothing to prevent the takeover 217 or, subse- 
quently, to secure the release of the hostages. 218 The militant students, among 
other demands, requested the United States to return the former Shah — who 
on 22 October had been allowed to enter the United States from his exile in 
Mexico to receive medical treatment — to Iran for trial, a demand that the 
United States rejected. 219 

The United States immediately protested the seizure of the Embassy and its 
staff, but when Prime Minister Bazargan, a secular moderate opposed by the re- 
ligious extremists, resigned on 6 November, it found itself with no one in Iran 
to negotiate. Thereafter President Carter dispatched two emissaries from the 
private sector — former Attorney General Ramsey Clark and former Foreign 
Service officer William Miller — on a secret mission to Tehran in an attempt to 
open up channels of communication. Carrying a letter from the President on 
White House stationery addressed "Dear Ayatollah Khomeini," Clark and 
Miller got no further than Istanbul, Turkey, by which time the Ayatollah had 
learned of their trip and ordered that no one in Tehran should see them. 220 Af- 
ter a week in Istanbul, during which time they made dozens of fruitless calls to 
Tehran, they concluded that there would be no movement on Iran's part until 
a new constitution had been adopted and a new government put in place and 
thereafter returned to Washington. 221 

While this mission and other efforts to secure the return of the hostages 
were under way, the United States requested that the UN Security Council 
meet to discuss ways to obtain the hostages release. Eventually it did on 4 De- 
cember unanimously approving a resolution that called for the hostages imme- 
diate release. 222 When this resolution went unheeded by Iran, the Council met 
again and on 3 1 December, adopted another resolution demanding that Iran 
should free the hostages. 223 It also decided to reconvene in January 1980, in the 
event of continued Iranian non-compliance, to discuss the imposition of sanc- 
tions under Articles 39 and 41 of the UN Charter. The Council met again on 
13 January 1980, to consider a US draft resolution that would have mandated 
broad economic sanctions against Iran. A veto cast by the Soviet Union pre- 
vented its adoption and effectively removed the Security Council from the set- 
tlement process. 224 

In the meantime, the United States on 29 November 1979, instituted pro- 
ceedings against Iran before the International Court of Justice, requesting the 
Court, pending its final Judgment in the case, to indicate certain provisional 
measures, first and foremost being that "the Government of Iran immediately 
release all hostages of United States nationality and facilitate the prompt and 



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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



safe departure from Iran of these persons and all other United States officials in 
dignified and humane circumstances." 225 Acting with commendable alacrity, 
the Court took the case, heard oral argument by the United States (Iran did not 
appear at the hearing), and on 15 December unanimously ordered Iran to re- 
store the Embassy to US control and to ensure the: 

immediate release, without any exception, of all persons of United States 
nationality who are or who have been held in the Embassy ... or have been held 
as hostages elsewhere, and afford full protection to all such persons, in 
accordance with the treaties in force between the two States, and with general 
international law. 226 

The Court also enjoined both the United States and Iran not to take any ac- 
tion "which may aggravate the tension between the two countries or render the 
existing dispute more difficult of solution. . . . 227 As it had in the case of the two 
Security Council resolutions, 228 Iran refused to obey the Court's Order. 

Diplomatic efforts during the winter and early spring of 1980 were no more 
successful in achieving the hostages' release. 229 Most prominent among these 
efforts was the establishment of a five -member UN Commission of Inquiry that 
was to undertake a fact-finding mission to Iran to hear Iran's grievances and to 
allow for an early solution of the crisis. . . ." 23 ° The Commission traveled to 
Tehran in early March but returned without having made any progress. A 
seemingly promising initiative involving the transfer of the hostages from the 
militants holding the Embassy into Iranian governmental control also fell 
through in early April when religious elements within Iran's Revolutionary 
Council thwarted the efforts of President Bani-Sadr and Prime Minister 
Ghotbzadeh to end the crisis. 231 Thus, by mid- April 1980 — over five months 
after the Embassy had been overrun and the hostages seized — "momentum for 
a negotiated solution seemed to have run out." 232 

On 24 April 1980, some days after the beginning of the sandstorm season, 
and the "mission cut off date recommended by the Joint Chiefs of Staff due to 
the possibility of sandstorms, with knowledge that a main highway ran adjacent 
to Desert I, in the face of the failure to secure their release through diplomatic 
or judicial means, the United States launched a rescue mission designed to free 
the hostages and return them to the United States. 233 That evening (local 
time) eight Sea Stallion RH-53 helicopters lifted off from the USS Nimitz sta- 
tioned in the Arabian Sea off the coast of Iran. They were to fly under cover of 
darkness over 500 miles inland to a previously-prepared airstrip codenamed 
"Desert I," there to rendezvous with six Hercules C-130 cargo aircraft carrying 

65 



Forcible Protection of Nationals Abroad 



90 commandos. After refueling and loading the commandos and their equip- 
ment, the helicopters were to proceed to a remote site in the mountains south 
of Tehran, where they would be camouflaged to avoid detection the following 
day. That evening, 25 April, "Delta Force" was to enter Tehran in local vans 
and trucks, free the hostages at the Embassy, and then be evacuated by helicop- 
ter to an abandoned airport outside of Tehran codenamed "Desert II." Leaving 
the helicopters, they would get aboard transport aircraft waiting for them and 
be flown out of Iran under heavy US air cover. 

Unfortunately, while operating through a sandstorm, two of the eight heli- 
copters encountered mechanical and navigational difficulties and never 
reached Desert l. 234 A third helicopter experienced hydraulic problems, which 
upon inspection at the desert site proved incapable of on-site repair. With only 
five workable helicopters at hand and knowing that a minimum of six were 
needed to accomplish the actual rescue the following night, the mission com- 
mander decided to abort the operation. Tragically, during refueling operations 
prior to the withdrawal, one of the helicopters collided with a C-130 and the re- 
sulting explosion and fire killed eight crew members and wounded another five. 
The force thereupon withdrew in the remaining C-130s. Evidence suggests 
that Iran was not even aware that US forces had been in the territory until Pres- 
ident Carter officially informed it of the failed rescue operation several hours 
later. 235 

In a nationally televised broadcast at 7 A.M. that morning, President Carter 
in describing the aborted rescue operation characterized it as a "humanitarian 
mission" and specifically disavowed any hostility towards the Iranian people. 236 
According to the President, he "ordered this rescue mission prepared in order to 
safeguard American lives, to protect America's national interests, and to reduce 
the tensions in the world that have been caused among many nations as this 
crisis has continued." 237 The following day, in a report to the Congress, the 
President reiterated the humanitarian nature of the mission and briefly ex- 
plained why he considered it justified under international law, stating that 
" [i]n carrying out this operation, the United States was acting wholly within its 
right, in accordance with Article 51 of the United Nations Charter, to protect 
and rescue its citizens where the government of the territory in which they are 
located is unable or unwilling to protect them." 238 The United States, in a con- 
temporaneous report to the UN Security Council, also relied upon the protec- 
tion of nationals rationale, claiming that the rescue operation was a permissible 
"exercise of its inherent right of self-defense, with the aim of extricating Ameri- 
can nationals who have been and remain the victims of the Iranian armed at- 
tack on our embassy." 239 

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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



The US legal argument, based upon the inherent right of self-defense that 
States still enjoy under Article 51, is a reprise of the argument the United 
States first advanced in the case of the seizure of the Mayaguez in 1975 and sub- 
sequently developed in the UN Security Council to justify Israel's raid on 
Entebbe in 1976. 

Since Iran never took the failed US rescue operation to the Security Coun- 
cil, that body did not have the opportunity to debate or pass on either the legal- 
ity of the operation or the validity of the US legal argument. Moreover, the 
reactions of States, while generally supportive of the United States, 240 shed lit- 
tle light on their views regarding the legal basis of the US action under interna- 
tional law. 241 

In the case of Iran, however, unlike the other incidents discussed in this 
Chapter, the International Court of Justice had the opportunity to consider, at 
least in passing, the question of what legal arguments, if any, were available to 
support such rescue operations. This opportunity arose from the fact, as will be 
recalled, that in its Order on provisional measures of 15 December 1979, the 
Court had instructed both Iran and the United States not to take any action 
that might exacerbate the dispute between the two countries. 242 The at- 
tempted rescue operation, of course, took place on 24 April 1980, over a month 
after the Court had held three days of hearings on the merits of the case and 
while it was in the course of preparing its Judgment issued exactly a month 
later. Thus, it could be argued that the operation constituted the international 
law equivalent of contempt of court, especially if the Court were to have found 
that it violated the UN Charter. 

In the event, as the late Judge Dillard remarked, u [w]hat the Court did was 
very gentle. It chided the United States for its rescue operation but didn't pass 
judgment on it." 243 While stating that it could not "fail to express its concern in 
regard to the United States' incursion into Iran," the Court nevertheless point- 
edly passed up the opportunity to question its legality, noting merely that it 
considered itself "bound to observe that an operation undertaken in those cir- 
cumstances, from whatever motive, is of a kind calculated to undermine re- 
spect for the judicial process in international relations " 244 This mild slap on 

the wrist, as the late Professor Stein notes in his perceptive critique of this as- 
pect of the Court's Judgment, "was coupled with an express disavowal of any 
finding that the rescue attempt was unlawful." 245 To quote from its Judgment: 

[T]he Court must point out that neither the question of the legality of the 
operation of 24 April 1980, under the Charter of the United Nations and under 

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Forcible Protection of Nationals Abroad 



general international law, nor any possible question oi responsibility flowing from 
it, is before the Court. 246 

Thus, as Stein aptly concludes, the Court: 

[LJeft to another day, a day one suspects will never come, a definitive statement 
of its views regarding the law governing the use of force in defense of the lives of 
nationals abroad. 247 

Should the day ever arrive when the Court addresses this question, however, 
its decision may well turn on its acceptance or rejection of the US argument in 
the Hostages Case — that the forcible protection of nationals abroad is a proper 
exercise of the inherent right of self-defense against armed attack authorized by 
Article 5 1 of the UN Charter — rather than on whether such actions constitute 
an exception to the prohibition against the use of force found in Article 2(4) or 
are otherwise permissible under general international law. 248 

This characterization of the legal question, after all, seems to have been "ac- 
cepted without question by the Court," 249 which not only mentions its being as- 
serted by the United States before the Security Council, 250 but also refers twice 
to the "armed attack on the United States Embassy" 251 and the "armed attack 
by the militants ... and their seizure of Embassy premises and staff...." 252 Profes- 
sor Stein has called attention to what he labels the Court's: 

tantalizing suggestions that the category of "armed attacks" under Article 5 1 of 
the UN Charter extends well beyond major armed assaults.... If, indeed, the 
Court's references to "armed attack" were studied rather than casual, operations 
such as the rescue mission are lawful not because the right of self-defense under 
the UN Charter is coextensive with the preexisting customary law right of 
self-defense, which extended beyond defense against 'armed attack' . . ., but 
because the right of self-defense against armed attack has arisen. 253 

The two dissenting judges in the Hostages Case appear to have accepted the 
majority's analytical framework as well. Thus, Judge Morozow, after criticizing 
"the so-called rescue operation," which he labeled "an invasion of the territory of 
the Islamic Republic of Iran," 254 maintained that the Court should have drawn 
attention to the undeniable legal fact that Article 51 of the Charter establishing 
[sic] the right of self-defense, may be invoked only "if an armed attack occurs 
against a member of the United Nations." It should have added that . . . there is 
no evidence that any armed attack had occurred against the United States. 255 

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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



Judge Tarazi, who prefaced his remarks on this score with the observation 
that "[i]t is not my intention to characterize [the rescue] operation or to make 
any legal value judgment in this respect," 256 nevertheless reflected in his opin- 
ion some of Judge Morozow's concerns about attempts to treat the operation as 
a self-defense response to an armed attack. 257 The legal framework for debate 
on the question is in place should the issue arise in some future case. 258 

Surprisingly, scholarly comment on the legality of the rescue operation has 
been relatively sparse. One US writer declared categorically that it was "a fla- 
grant violation of international law," 259 while another of his colleagues found it 
to be "preemptively illegal." 260 A German scholar, rejecting the US self-defense 
argument, concluded that "it was from the very beginning nothing but a viola- 
tion of the prohibition of the use of force and of Iran's territorial integrity." 261 
Professor Ronzitti, who repeatedly refers to the rescue operation and the Hos- 
tages Case in his monograph, 262 presumably holds the same opinion, since he 
reaches the general conclusion that "the right to intervene to protect one's 
own citizens abroad does not exist." 263 

Two more detailed legal studies of the rescue operation reach the contrary 
conclusion, each perhaps by a different legal path. In the first, while finding the 
US self-defense argument "subject to considerable difficulties," 264 a British au- 
thor nevertheless regards the operation as legally justified pursuant to a "re- 
strictive" interpretation of Article 2(4), i.e., that it was not a use of force against 
the political independence or territorial integrity of Iran, or in any other man- 
ner inconsistent with the purposes of the United Nations. 265 

In the second, Professor Schachter, who also believes that "an armed rescue 
action to save lives of nationals ... is not prohibited by article 2 (4) when the 
territorial government is unable or unwilling to protect them and the need for 
instant action is manifest," 266 applies this test to the rescue operation and con- 
cludes that "the action taken did not violate the U.N. Charter or international 
law." 267 

It is not entirely clear from his exposition, however, whether his finding that 
Article 2(4) was "no problem" is grounded upon the belief that the rescue oper- 
ation represented "an exception to the prohibition of article 2(4)" 268 or, alter- 
natively, that it constituted an exercise of legitimate self-defense. 269 On 
balance, both the approach and language of his seminal chapter on the subject 
are somewhat confirmed by his subsequent writings. 270 It is suggested that Pro- 
fessor Schachter justifies the Iranian rescue operation not by a restrictive read- 
ing of Article 2(4), but rather by an expanded concept of the right of 
self-defense under Article 5 1 . 

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Forcible Protection of Nationals Abroad 



Finally, as in the case of the Lebanese crisis discussed earlier in this Chap- 
ter, 271 some mention of the factual predicate behind its invocation by the 
United States during the Iranian crisis seems warranted here. While this issue 
has not received much attention in Iranian crisis postmortems, 272 an adequate 
factual showing that the lives or safety of the hostages were in imminent dan- 
ger — that, technically, the requirement of the "necessity" of the rescue opera- 
tion had been met 273 — is the sine qua non of its being a valid exercise of the right 
of forcible protection. Put more pointedly by former Under Secretary of State 
Christopher, the question becomes: "was the United States legally justified in 
undertaking the rescue mission in April 1980 . . . even though the hostages, at 
that moment, may not actually have been in imminent danger?" 274 

The answer to this question is made more difficult in the case of Iran by the 
fact that the real or apparent threat to the lives and safety of the hostages was 
not short-lived, requiring a decision as to whether to undertake a rescue mis- 
sion to be made once and for all within a relatively narrow time frame, but con- 
tinued for a period of many months. Thus, this case differs markedly from the 
other instances surveyed in this Chapter, especially the Dominican Republic 
crisis, where US decisionmakers had relatively little time to assess the facts be- 
fore deciding whether or not to mount a rescue mission. It also differs from 
these other instances in that here the foreign government involved was not just 
unable, but blatantly unwilling, to do anything to protect the lives and safety of 
US nationals, thus accentuating the actual and potential danger to them. 

Since, as the Hostages Convention reaffirms in its Preamble, hostage-taking 
is par excellence an "act which endangers innocent human lives," 275 it is difficult 
to deny the fact that the US hostages at the Embassy were in "imminent dan- 
ger" immediately after their seizure on 4 November 1979, a seizure that, it will 
be recalled, was endorsed and confirmed by the Ayatollah Khomeini within a 
fortnight. They were bound, blindfolded, paraded before TV cameras and 
threatened with trial and possible execution. Clearly the "necessity" require- 
ment permitting a rescue mission could have been satisfied easily at that time. 

If once satisfied, however, must the necessity requirement be satisfied again 
on 24 April 1980, when the actual rescue operation took place? Secretary 
Christopher's rhetorical question, perhaps shaped by the fact that it was raised 
in the context of his summary and evaluation of Professor Schachter's contri- 
bution to a joint publication effort, implies an affirmative answer. 276 The lat- 
ter's analysis takes the position that: 



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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



[t]he illegality of their [prolonged] detention and the failure of international 
organs to obtain their release should not be enough to legitimize the use of force 
to effect their release. To allow the use of force in the absence of imminent peril 
would imply a "necessity" to use force to redress a legal wrong [which the UN 
Charter does not permit] . It would be significantly different from the necessity of 
self-defense to repel an attack or to save lives. 277 

Professor Schachter's attempt to transmute a permissible exercise of the 
right of forcible protection into an illegal use of force to redress a legal wrong, 
using the passage of time and possible improvement in the treatment of the 
hostages as an alchemist's converter, is not persuasive on a number of grounds. 
The taking of hostages being a wrongful act under international law, to then 
deny the State of the hostages' nationality the right to forcibly protect the hos- 
tages simply because the State that has seized the hostages has lessened its 
threat to the hostages' lives or limbs — evidenced, perhaps, by having placed 
them in an ordinary prison or permitted Red Cross access — is to eliminate an 
important sanction against the hostage-taking State. It improves the hostage 
takers negotiating position, and thereby encourages similar acts in the future. 

Second, if "any taking of hostages is so grave a criminal act that a rescue ac- 
tion is instantly justified in law," (a position Professor Schachter apparently re- 
jects but admits has "appeal" since to him "[i]t appears realistic and 
practical" 278 ), why should any remedial steps taken by the hostage-taking 
State — short of the unconditional release of all hostages — in effect, reduce the 
wrongfulness of the hostage-taking State's act. 

Finally, although there appears to be little if any State practice on point, 
there is no data that suggests that any State has acknowledged a diminution of 
its right to protect its nationals who have been illegally detained by another 
State merely because they have been held for some time and the threat to their 
lives and safety may have diminished somewhat since their wrongful detention 
commenced. Certainly the United States never took this position during the 
Iran crisis. Indeed, as Professor Stein perceptively points out, "[i]n the Hostages 
case, the United States made no effort to demonstrate to the Court that the 
rescue mission was undertaken in response to a new or more imminent peril to 
the hostages' lives." 279 

Even assuming, in arguendo, that international law required the United 
States to demonstrate that the hostages actually were in imminent danger at 
the time of the rescue operation, that burden of proof certainly would appear to 
have been met. As President Carter noted when initially explaining his reasons 
for ordering the mission, "the steady unraveling of authority in Iran and the 

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Forcible Protection of Nationals Abroad 



mounting dangers that were posed to the safety of the hostages themselves" 
made the attempt "a necessity . . . ." 28 ° Secretary of Defense Brown seconded 
the President's remarks, stressing the "danger posed to the hostages by the de- 
teriorating security situation in Iran." 281 Furthermore, he added, "[w]e have 
considerable concern for the physical and psychological effects on the hostages 
of prolonged captivity." 282 Secretary Christopher, who subsequently reviewed 
what he had believed to be the risks to the hostages "not in retrospect, with the 
benefit of hindsight, but at the time of the crisis, when decisions actually had to 
be made," spelled out US concerns in far more detailed fashion before conclud- 
ing that, "[b]y any objective measure, it was certainly reasonable for the United 
States to operate on the assumption that the hostages were in grave, even mor- 
tal, peril at the time of the rescue mission." 283 

Professor Schachter, who believes the question of whether the hostages 
were in imminent danger at the time of the rescue operation to be unanswer- 
able, even with hindsight, takes a "margin of appreciation" approach to the 
matter. "The pertinent point," he observes, agreeing with Christopher: 

is whether, at the time, the US government had reason to fear that in the 
emotional atmosphere of Iranian revolutionary ferment the hostages would be 
executed, with or without a trial. As a general rule, it seems reasonable to 
recognize that the state whose nationals are imprisoned as hostages should have 
wide latitude to make the decision whether they are in extreme danger. 284 

Applying this approach to the publicly available facts, he concludes that: 

whether or not the hostages were actually in extreme danger, the conditions 
were such as to lead the US government to believe they were. Faced with this fact 
and the not unrealistic conclusion at the time that peaceful means offered no 
promise of release, the United States had reasonable grounds to consider military 
action necessary to effect a rescue. On these premises, the action taken did not 
violate the Charter or international law. 285 

With this conclusion, if not with all his reasoning in reaching it, few reason- 
able observers can disagree. Moreover, by spelling out and applying a "margin 
of appreciation" approach to the determination of whether the requirement of 
necessity was satisfied in the case of the rescue operation in Iran, Professor 
Schachter has made an important contribution towards refining one of the cri- 
teria that will be used in judging the validity of future claims by States to exer- 
cise the right of forcible protection of their nationals abroad. 

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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



Fundamentally, as in the Iran case, a state's embassy and/or consulate con- 
stitutes the sovereign property of the foreign state which occupies it. If an em- 
bassy or consulate is attacked by foreign nationals, it constitutes an attack on 
the occupying state (the United States in the Iran case). 

An attack on a state justifies a "self-defense" response against the attack- 
ers/occupiers of the state's embassy or consulate to secure the building and the 
rescue of its nationals per Article 5 1 of the UN Charter. 

NOTES 

1. Information about the forcible protection of nationals abroad by States other than the 
United States — principally France — is hard to obtain and often fragmentary or inaccurate. 
Moreover, with the one exception of Entebbe, such instances appear to have generated little 
legal debate either on the international level or within the States concerned. For a necessarily 
cursory and undoubtedly incomplete series of case studies of non-US forcible protection of 
nationals abroad, see Chapter V. 

2. Background information about the crisis as well as detailed descriptive accounts of it 
may be found in M. Agwani, The Lebanese Crisis, 1958 (1965); L. Meo, Lebanon: Improbable 
Nation (1965); and F. Qubain, Crisis In Lebanon (1961) [hereinafter cited as Qubain]. For 
differing views on the legal issues involved, compare Potter, Legal Aspects of the Beirut Landing, 52 
Am. J. Int'l L. 727 (1958) with Wright, United States Intervention in the Lebanon. 53 id. 112 
(1959). For a useful monograph, prepared under the supervision of the present writer and drawn 
upon throughout this chapter, see R. Osborne, The Lebanese Intervention and International 
Law, 31 Mar. 1969 (unpublished thesis in US Naval War College Library). See also C. Thayer, 
Diplomat ch. Ill (1959) for a vivid account of the actual intervention. 

3. According to the official census, Lebanon's population consists of 392,000 Christians and 
383,000 Muslims. L. Meo, supra note 2, at 229 n. 1 . But see text at and accompanying note 4 infra. 

4. The most recent estimates place the population at 2,800,000. The Middle East and 
North Africa 1989, at 617 (36th ed. 1990). With a higher birthrate and lower emigration, most 
informed observers believe that Muslims now account for about 60% of the total population. 

5. Qubain, supra note 2, at 17. 

6. M. Agwani, supra note 2, at 1-2. 

7. Qubain, supra note 2, at 18. 

8. "The people of Lebanon enjoy one of the highest standards of living in the Middle East." 
Id. at 3. 

9. Id. at 35-37. 

10. Id. at 38. 

11. Id. at 38-44. 

12. Id. at 42. 

13. Joint Resolution of 9 March 1957, § (1957). 2, 7 1 Stat. 5, reprinted in 36 DEPT St. BULL. 
481. 

14. See L. Meo, supra note 2, at 117-20. 

15. R. Garnet, Intervention and Revolution 140 (1968). 

16. The violence began in Tripoli, where according to unsubstantiated reports of the 
opposition, 168 of their members were killed. Qubain, supra note 2, at 74. It soon spread. For a 
succinct account, see R. Osborne, supra note 2, at 22-23: 

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Forcible Protection of Nationals Abroad 



Violence in Tripoli led to armed rebellion. On 9 May demonstrations began followed 
by a burning of the US Information Library. On 12 May the violence reached Beirut. 
Barricades were set up with burning oil drums. The road to Damascus was barred and 
a curfew was introduced. Commerce and industry came to a standstill and the large 
volume of tourists disappeared from the country. When the news of the upheaval in 
Tripoli reached Beirut, the United National Front held a meeting and the decision 
was made for armed revolt. On 13 May the United National Front attacked the 
Presidential Palace at Bayt al-Din. The Cairo radio began urging Lebanese Moslems 
to seize areas where they were in control and accede to the United Arab Republic. 
The country was sliding toward anarchy. 

17. Despite Chamoun's demands that the army promptly put down the rebellion and end 
the strike, General Fuad Chebab, the commander-in-chief, refused to commit the army against 
what he considered a mass protest rather than subversion. From May to July he used his 
6,000-man army to patrol the streets and to prevent clashes between Christians and Muslims. He 
wanted at all costs to keep the army, which was about two-thirds Christian and one-third 
Muslim, above the political fray that threatened to split the county. R. Garnet, supra note 15, at 
144. 

18. While the civil strife which occurred in Lebanon from May through July of 1958 went 
well beyond Garnet's "mass protest," see text accompanying notes 16 and 17 supra, it never really 
degenerated into civil war. Moreover, throughout the crisis an element of unreality, if not farce, 
often prevailed. Thus, according to Qubain: 

[h] ad the Lebanese crisis not had such tragic aspects, it could have been easily 
described as a comic opera. There was something unreal about the whole affair-a 
succession of scenes taken virtually in toto from Ruritania: an army that would not 
fight; opposition leaders officially declared 'rebels,' with warrants out for their arrest, 
blandly walking the streets of Beirut in broad daylight with no one laying so much as a 
finger on them; pitched battles between the army and 'rebel' forces stopped, so that 
army trucks could bring water to the rebels and move their wounded to hospitals; a 
president virtually a prisoner in his own palace for over two months; a parliament that 
could not meet; opposition leaders, each with a private army of his own, establishing 
virtually independent government in his locality — levying taxes and administering 
justice; and a crisis that was long on bitter words, but short on actual casualties. 

19. For President Chamoun's statement to the press reiterating such charges, see M. Agwani, 
supra note 2, at 74-76. 

20. For the Lebanese complaint to the Security Council, see 13 U.N. SCOR Supp. (Apr.-Jun. 
1958) at 33, U.N. Doc. S/4007 (1958), reprinted in M. Agwani, supra note 2, at 120-21. 

21. 13 U.N. SCOR (823d mtg.) at 4, U.N. Doc. StP.V. 823 (1958), reprinted in M. Agwani, 
supra note 2, at 124. 

22. 13 U.N. SCOR (823d mtg.) at 22-23, U.N. Doc. S/P.V. 823 (1958), reprinted in M. 
Agwani, supra note 2, at 147-59. 

23. 13 U.N. SCOR Supp. (Apr.-Jun. 1958) at 47, U.N. Doc. S/4023 (1958), reprinted in M. 
Agwani, supra note 2, at 198. 

24. Curtis, The United Nations Observation Group in Lebanon, 18 Int'l Org. 738, 75 1-52 (1964). 
Other observers are much more critical of UNOGIL's operations. See Kerr, The Lebanese Civil War, 
in The International Regulation of Civil War 65, 85-89 (E. Luard ed. 1972); R. Murphy, 
Diplomat Among Warriors 402 (1964); and Qubain, supra note 2, at 143-52. 



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25. D. Eisenhower, The White House Years: Waging Peace 1956-1961, at 267 (1965). 

26. 39DEPTST.BULL. 31 (1958). 

27. D. Eisenhower, supra note 25, at 270 (emphasis added) . See also text infra accompanying 
note 32. 

28. Qubain, supra note 2, at 115. See Baghdad Reports Americans Slain, N.Y. Times, July 
16, 1958, at 15, col 1. See also C. Thayer, supra note 2, at 27. 

29. Kerr, supra note 24, at 77. 

30. For a graphic description, see C. Thayer, supra note 2, at 33-36. 

31. Kerr, supra note 24, at 77. 

32. See supra text at note 27. According to one key official who thereafter was instrumental 
in achieving a settlement of the crisis, President Eisenhower did not even mention the need to 
protect nationals when in a White House briefing he: 

elaborated a little on his purpose in ordering US Marines to land in Lebanon. He said 
that sentiment had developed in the Middle East, especially in Egypt, that Americans 
were capable only of words, that we were afraid of Soviet reaction if we attempted 
military action. Eisenhower believed that if the United States did nothing now, there 
would be heavy and irreparable losses in Lebanon and in the area generally. He 
wanted to demonstrate in a timely and practical way that the United States was 
capable of supporting its friends. 

R. Murphy, supra note 24, at 398. 

33. 39 DEPT ST. BULL. 181 (1958) (emphasis added). 

34. Id. at 182. 

35. Id. at 184. 

36. Explaining the landing of Marines he argued that: 

[t]heir presence is designed for the sole purpose of helping the Government of 
Lebanon at its request in its efforts to stabilize the situation brought on by the threats 
from outside, until such time as the United Nations can take the steps necessary to 
protect the independence and political integrity of Lebanon. They will also afford 
security to the several thousand Americans who reside in that country. 13 U.N. SCOR 
(827th mtg.) at 7, U.N. Doc. S/P.V. 827 (1958), reprinted in 39 DEPT ST. BULL 186 
(1958) (emphasis added) . 

37. Ambassador Lodge's statement before the Security Council on 18 July 1958, to the effect 
that the "[fjorces of the United States now in Lebanon at the specific request of the lawfully 
constituted Government of Lebanon would not remain if their withdrawal were requested by 
that Government," 13 U.N. SCOR (833d mtg.) at 10, U.N. Doc. S/P.V. 833 (1958), reprinted in 
39 DEPT ST. BULL 196 (1958), demonstrates beyond doubt that the protection of nationals 
rationale had been discarded after three days of use. One explanation for the shift in legal 
justifications, of course, might be that over the 15-18 July period the safety of US nationals had 
been secured, thus depriving the United States of the factual basis for continued reliance upon 
this rationale. 

38. R. Murphy, supra note 24, at 399-400. See supra note 17. Cf. D. Eisenhower, supra note 
25, at 265, who places the Lebanese army at 9,000 men. 

39. D. Eisenhower, supra note 25, at 286. "In support of these troops, the entire Sixth Fleet, 
consisting of about 70 ships with ^\0,000 men, moved to the east Mediterranean." Qubain, supra 
note 2, at 115. 



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Forcible Protection of Nationals Abroad 



40. According to President Eisenhower, the decision to have the troops occupy only Beirut 
and its airfield was: 

... a political one which I adhered to over the recommendations of some of the 
military. It the Lebanese army were unable to subdue the rebels when we had secured 
their capital and protected their government, I felt, we were backing up a government 
with so little popular support that we probably should not be there. 

D. Eisenhower, supra note 25, at 275 n.8. Would that subsequent Presidents had taken a similar 
approach when committing United States forces to the assistance of various governments in 
later years! 

41. Qubain, supra note 2, at 120. 

42. For a description of their "low profile" activities, see Kerr, supra note 24, at 81-83. 

43. In one semi-humorous incident, "two American soldiers in a jeep lost their way and 
strayed into the rebel-held quarter of Beirut called El-Basta. Local irregulars surrounded their 
car, disarmed them and took them to their chief, Satib Salam, who served them Coca-Cola and 
gave them a kindly lecture about interference in the domestic affairs of foreign countries. They 
were then sent off in their jeep, minus their weapons." Id. at 90 n.12. 

44. Qubain, supra note 2, at 1 19-20. See also id. at 130. 

45. "Two other points should perhaps be emphasized in this connection: (1) that on several 
occasions American troops, while on duty, were shot at by snipers, but in most cases, in 
accordance with their instructions, did not return the fire and (2) that not a single Lebanese 
suffered any injury of any kind — whether in his person or property — as a result of US military 
action." Id. at 121. 

46. Schulimson, Marines in Lebanon: 1958, at 32 (Historic Branch, G-3 Division 
Headquarters, US Marine Corps, 1966). Accord, Kerr, supra note 24, at 90 n.13; R. Murphy, 
supra note 24, at 408; and Qubain, supra note 2, at 120. 

47. The withdrawal began on 8 October 1958, and was completed in less than three weeks. 
39 DEPT. ST. BULL. 650-51 (1958). 

On October 25, 1958, the final withdrawal of United States troops took place, almost 
without public notice. This lack of attention contrasted vividly with attitudes in the 
early days of our intervention when some international critics were crying that 
America's purpose was to establish a permanent and imperialistic foothold in the 
Middle East. 

D. Eisenhower, supra note 25, at 288. 

48. See, e.g., Curtis, supra note 24, at 754. 

49. But see Wright, supra note 2. 

50. "The most plausible ground for the recent landing of military forces of the United States 
near Beirut is to be found in the invitation of the duly elected Government of Lebanon 
Potter, supra note 2. According to Wright, "[t]he American declaration that it would withdraw 
when requested by Lebanon and its actual withdrawal when so requested indicate that this was 
the justification mainly relied upon." Wright, supra note 2, at 124 n.38. See supra text at and 
accompanying note 37. 

5 1 . Responding to the argument that the right to intervene by invitation may be the subject 
of abuse, Qubain concludes that: 

[tjhis was clearly not the case with respect to the landing of American troops in 
Lebanon. Free elections had already taken place without the slightest interference 
from the troops, and a new President, supported and accepted by all factions, was 
elected. Furthermore, . . . the presence of American troops did serve a constructive 

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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



purpose in Lebanon itself, and contributed to the calming of the tense atmosphere in 
the area. Qubain, supra note 2, at 101. 

52. See generally supra text at notes 32-37. President Eisenhower, who recognized that any 
action by the United States must conform "with the Charter of the United Nations," obviously 
relied upon the concept of collective self-defense. D. Eisenhower, supra note 25, at 271. 
Describing his briefing of Congressional leaders, he notes that at one point Secretary of State 
Dulles "had to explain Article 51 of the United Nations Charter, which permitted a country to 
act on an emergency basis pending the first opportunity to turn the problem over as soon as the 
United Nations was able to act." Id. at 272. 

53. See supra text at note 24. For a strong argument supporting the collective self-defense 
thesis, see Qubain, supra note 2, at 123-26. 

54. See supra text at notes 32-37. 

55. See, e.g., Kerr, supra note 24, and Qubain, supra note 2. 

56. Potter, supra note 2, at 728. 

57. Wright, supra note 2, at 1 17. 

58. See supra text at and accompanying notes 16-18. Of course, this fact cuts two ways. 
Questioning the motives for the action of the United States in a debate in the British Parliament, 
Mr. Hugh Gaitskell, leader of the opposition, tellingly remarked "that if it [the justification for 
US action] was simply the lives of Americans, then they have been in some danger throughout 
all these last weeks while the civil war has been taking place in Lebanon." 591 Pari. Deb., H.C. 
(5th ser.) 1249(1958). 

59. See supra text at note 33. "In addition to our embassy personnel and other government 
employees, a good many Americans lived in Lebanon, most of them as teachers, missionaries, 
and businessmen. Beirut also was a popular seaside resort which attracted Americans residing 
throughout the Middle East and many tourists." R. Murphy, supra note 24, at 398. 

60. For instances of US citizens being trapped by crossfire, see, e.g., C. Thayer, supra note 2, 
at 23. That they were not intentionally the targets of the anti-Chamoun forces seems apparent 
from the statement of Mr. Sa'ib Salam, the opposition leader, made immediately after the 
landing of US troops. "Our national Lebanese liberation movement is proud of the fact that it has 
not threatened foreigners or their property in the two months of an all-out bloody revolution, 
because its only aim is to get rid of [President Chamounl " See M. Agwani, supra note 2, at 295. 

61. See supra text at note 28. 

62. It is worth noting in this regard, however, that, while the United States chartered "four 
commercial aircraft to provide transportation for Americans who wish[ed] to leave Iraq," it 
apparently never contemplated forcible action to protect them at that time. Indeed, five days 
after the coup d'etat the US Ambassador seemed quite content with assurances from the 
revolutionary regime "that they will honor their promise to protect American lives and property. 
Assurances have also been given that those Americans wishing to leave Iraq will be allowed to 
depart freely and that all necessary precautions shall be taken to assure safe departure." 39 DEPT. 
ST. BULL. 199(1958). 

Also worthy of note is the fact that Great Britain, while accepting the protection of nationals 
rationale advanced by the United States in the case of Lebanon, 591 Pari. Deb., H.C. (5th ser.) 
1243 (1958) (Mr. Lloyd), did not adopt it herself when justifying the subsequent dispatch of 
British troops to Jordan. Id. at 1438-39 (Prime Minister). But see the remarks of an opposition 
spokesman to the effect that "[t]here would, in my view, be only one justification for entering 
Jordan with troops. That is if British personnel were in danger and it was our duty to preserve the 
lives of British persons in Jordan. Then, I can visualize our putting troops in for that sole 
purpose." Id. at 1304 (Mr. Crossman). 

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Forcible Protection of Nationals Abroad 



63. R. Murphy, supra note 24, at 400. 

64. R. Osborne, supra note 2, at 61-62. 

65. C. Thayer, supra note 2, at 9-10. 

66. Id. at 20, 28. See supra text at note 26. 

67. R. Osborne, supra note 2, at 74-75 (emphasis deleted): 

Although a stronger case could be made if "Phase C" had been set, which required the 
evacuation of all Americans from the crisis area, it appears that a moment for 
deliberation did not exist and an immediate danger did exist after the Iraqi coup in 
which Americans were killed. The rebels in Lebanon had clearly announced their 
intent to violently overthrow the western aligned government and therefore it would 
be reasonable to assume that Americans would be harmed. The threat existed 
although no Americans were harmed, but a threat is sufficient to justify the exercise of 
a reasonable degree of self-defense. 

68. For a description of this breakdown and a day-by-day account of its aftermath, see A. 
Merriam, Congo: Background of Conflict ch. VI (1961). 

69. For Belgium's legal justification of this action, see McNemar, The Postindependence War 
in the Congo, in The International Law of Civil War 244, 273 (R. Falk ed. 1971), who quotes 
Prime Minister Gaston Eyskens as stating that: 

The Belgian troops intervened when there was imminent danger and the government 
found itself in a situation of absolute necessity. The Belgian government like any 
government has a duty to observe a rule of international ethics and international law 
which imposes upon a country the protection of its nationals. The Belgian 
government intervened solely to prevent bloodshed and to offer the protection which 
was necessary for the preservation of human lives. 

The above author, who acknowledges the continued existence of the right of forcible 
protection in such cases, nevertheless concludes that: 

The Belgian case was weak on two grounds. The failure to seek Congolese consent 
was a violation of a specific treaty commitment and the aggravation of an extremely 
sensitive colonial issue. Second, the Belgian actions in Katanga were more extensive 
than necessary for the protection of nationals and significantly contributed to the 
province's ability to remain independent. 

Id. For discussion of the question of consent and the principle of proportionality, see infra 
text at notes 102-104 & 142-146. 

70. S.C. Res. 143, 15 U.N. SCORSupp. Quly-Sept. 1960) at 16, U.N. Doc. S/4387 (1960). 

71. For a succinct account of ONUC's operations, see L. Miller, World Order and Local 
Disorder 66-1 16 (1967). 

72. "One [witness] said the rebels carried out thousands of executions during their 
occupation of Stanleyville. He said that 'every day, any time of the day, some Congolese was 
being dragged to the Lumumba monument and executed.' Their hands were tied behind their 
backs and they were hacked to death with machetes. The more illustrious of those killed had 
their hearts cut out and eaten in public by the rebels." The Times (London), Nov. 25, 1964, at 
12, col 2. 

73. Young, The Congo Rebellion, Africa Report 6, 11 (April 1965). Another commentator 
concludes that "[a]t least 18,000 Congolese were executed by the rebels." Grundy, The 
Stanleyville Rescue: American Policy in the Congo, 56 Yale Rev. 242, 247 (1967). 

74. Young, supra note 73, at 1 1. 



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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



75. Id. at 10. On the mercenaries and the key role they played in turning the tide of battle, 
see I. Colvin, The Rise and Fall of Moise Tshombe ch. XII (1968); D. Reed, 111 Days in 
Stanleyville ch. 10 (1965). There is little doubt that, like most mercenary contingents, they 
quickly filled their quotas in the looting and wanton murder departments. One mercenary is 
reported to have admitted that "in Kindu we must have shot at least three thousand people. I'll 
be honest with you: most of them unnecessarily." Id. at 180. See also infra text accompanying note 
138. 

76. D. Reed, supra note 75, at 8. 

77. Case Studies In African Diplomacy, No. 1, The Organization of African Unity and the 
Congo Crisis 1964-65, at 32 (C. Hoskyns ed. 1969). See infra text at note 86. 

78. See the title of Chapter 4 of D. Reed, supra note 75. 

79. For an insider's view of these negotiations, see W. Attwood, The Reds and the Blacks 
195-217 (1967). 

80. I. Colvin, supra note 75, at 190. 

81. Id. 

82. 19 U.N. SCOR (1174th mtg.) at 15, U.N. Doc. S/P.V. 1174 (1964) (Ambassador 
Stevenson), reprinted in 52 DEP'T. St. BULL. 18 (1965). 

83. D. Reed, supra note 75, at 192. 

84. 19 U.N. SCOR (1174th mtg.) at 15-16, U.N. Doc. S/P.V.1174 (1964), reprinted in 
American Foreign Policy — Current Documents 1964, at 777 (1967). See infra text 
accompanying note 90. 

85. Id. at 16, reprinted in 52 DEP'T. ST. BULL. 18 (1965). Fortunately, "the mercenary-led 
column captured Kindu, 300 miles south [of Stanleyville], just in time to prevent the mass 
murder of twenty-four Europeans. (Hundreds of Congolese 'intellectuals' had already been 
burned alive there by the . . . [rebels].)" W. Attwood, supra note 79, at 207. Compare supra text 
accompanying note 75. 

86. Grundy, supra note 73, at 247. See supra text at notes 77-78. 

87. W. Attwood, supra note 79, at 2 13. Attwood states that he was not authorized to discuss 
military operations, but points out that in any event it would have been impossible to impose a 
cease-fire so late in the day. "I doubt if . . . [Kanza] realized that nothing now could have stopped 
the gung-ho mercenary-led column from taking Stanleyville — not even Tshombe himself 
standing in the road and waving his arms." Id. 

Compare Attwood's recollection that Kanza "said the ANC advance had to be stopped and a 
cease-fire put into effect before we could talk about the hostages," Id. (emphasis added), with 
Garnet's inaccurate and misleading assertion that "[t]here is little doubt from Attwood's own 
account that had the United States ordered Tshombe to stop bombing Stanleyville, the US and 
Belgian hostages would have been released." R. Garnet, supra note 15, at 251 (emphasis added). 
Attwood's "own account," of course, indicates nothing of the kind. 

88. See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of 
War, Aug. 12, 1949, art. 3, 6 UST. 3516, T.I.A.S. No. 3365. "The rebels' action in holding and 
threatening hostages is in direct violation of the Geneva Conventions and accepted 
humanitarian principles." 19 U.N. SCOR Supp. (Oct.-Dec. 1964) at 189, U.N. Doc. S/6062 
(1964) (statement by US Government), reprinted in 12 M. Whiteman, Digest of International 
Law 212 (1971). 

89. On 25 September, when an ICRC delegation flew to Stanleyville for two days of talks 
with the rebels about releasing the hostages, Gbenye and his associates professed not to know 
"what the International Committee of the Red Cross was. When told about the Geneva 
Conventions and particularly the ban on holding people as hostages, they said they had not 

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Forcible Protection of Nationals Abroad 



heard about that, either. In any case, they added, they did not consider themselves as bound by 
the Geneva rules. The conventions, they scoffed, were 'written by whites.' " D. Reed, supra note 
75, at 115. 

90. On their ordeal, see generally id. passim. Ambassador Stevenson subsequently refuted 
what he termed "the astonishing thesis" that the threats to their lives were not real. 

The threats were very real indeed; they had been carried out in the past and we had 
every reason to expect that they would continue to be carried out in the future. From 
mid- August onward after the rebel forces had taken Stanleyville, seizing and holding 
foreigners as hostages became a deliberate act of rebel policy, and in the following 
months this medieval practice was widely applied. Many of those hostages were 
deliberately killed. By the time the Belgian paratroopers arrived in Stanleyville, and 
before the outlaws even knew of their impending arrival, the total of those thus 
already tortured and slaughtered amounted to 35 foreigners. . . . 

19 U.N. SCOR (1 174th mtg.) at 15-16, U.N. Doc. S/P.V. 1 174 (1964), reprinted in 52 DEPT. ST. 
BULL. 18 (1965). See supra text at note 84. 

91. The Belgian Foreign Ministry confirmed this development on 20 November, adding by 
way of explanation that "[t]he Belgian and American Governments have considered it their 
duty in view of the threat to their nationals and civilians in general in the region of Stanleyville to 
take preparatory measures in order to be able to effect, if necessary, a humanitarian rescue 
operation." 51 DEPT. ST. BULL. 840 (1964), reprinted in American Foreign Policy — Current 
Documents 1964, at 767 (1967). 

92. See W. Attwood, supra note 79, at 209-14. 

93. Prime Minister Tshombe, in a note to the United States dated 21 November 1964, 
stated that the Congo Government had decided: 

to authorize the Belgian government to send an adequate rescue force to carry out the 
humanitarian task of evacuating the civilians held as hostages by the rebels, and to 
authorize the United States Government to furnish necessary transport for this 
humanitarian mission. I fully appreciate that you wish to withdraw your forces as soon 
as your mission is accomplished. 

19 U.N. SCOR Supp. (Oct.-Dec. 1964) at 187-88, U.N. Doc. S/6062 (1964), reprinted in 
American Foreign Policy — Current Documents 1964, at 768 (1967). 

According to his biographer, Tshombe recalled that three weeks earlier '"the United States 
and Belgium, fearing that the army advance would be too slow to rescue the hostages, [had] 
asked my authorisation to organise a parachute attack on Stanleyville.'" I. Colvin, supra note 75, 
at 189. Thus, as in the case of the Dominican Republic, see infra text at notes 181-183 and 
accompanying note 186, an invitation to undertake a rescue operation apparently was solicited. 

94. For a vivid description of the actual operation, see D. Reed, supra note 75, ch. 19. Reed 
and Colvin state that 22 white hostages were killed and at least 40 wounded (Id. at 259; I. Colvin, 
supra note 75, at 194), while Attwood places the number of dead at 27. W. Attwood, supra note 
79, at 2 1 7. Apparently the discrepancy stems from the fact that five of the wounded later died. D. 
Reed, supra at 259. Three of the dead, including ironically Dr. Paul Carlson, were United States 
nationals. American Foreign Policy — Current Documents 1964, at 772 (1967). 

95. 52 DEPT. ST. BULL. 16 (1965) (Ambassador Stevenson), reprinted in American Foreign 
policy — Current Documents 1964, at 776 (1967). 

96. 19 U.N. SCOR Supp. (Oct.-Dec. 1964) at 195, U.N. Doc. S/6068 (1964) (Letter from 
Ambassador Stevenson to the President of the Security Council) , reprinted in American Foreign 
Policy — Current Documents 1964, at 771 (1967). For a description of this operation, see D. 



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Reed, supra note 75, at 267-69. Prior to it, the rebels had killed 22 white hostages. Compare infra 
text at note 97. 

Subsequent estimates of the total number of hostages rescued during the four day period 
ranged even higher than the figures given in the text. "The rescue operation was undertaken on 
November 24- As a result, more than 1,300 non-Congolese and over 1,000 black Africans were 
rescued from Stanleyville. In subsequent air and ground rescues, another 1,600 non-Congolese 
were saved." 52 DEPT. ST. BULL. 222 (1965) (Assistant Secretary of State Williams). 

97. See supra note 95. The Times (London), Nov. 28, 1964, at 8, col 1, reported that in the 
four day operation 80 white hostages had been killed in Stanleyville and Paulis. Compare supra 
text accompanying note 94 and at infra notes 135-136. 

98. For a comprehensive treatment of Belgium's legal justification of its participation in the 
operation, see Gerard, L'Operation Stanleyville-Paulis Devant le Parlement Beige et les Nations Unis, 
3 Revue Beige De Droit International 242 (1967). According to the author, the Belgian 
Government consistently maintained that the right of self-defense guaranteed States by Article 
51 of the United Nations Charter included the right of forcible protection of a State's nationals 
abroad. Id. at 254-56. See supra text accompanying note 69. The British government's position 
was the same. 702 Pari. Deb., H.C. (5th ser.) 911 (1964) (Mr. Thomson): "We take the view that 
under international law a state has the right to land troops in foreign territory to protect its 
nationals in an emergency if necessary." 

99. 19 U.N. SCOR Supp. (Oct.-Dec. 1964) at 188, U.N. Doc. S/6062 (1964), reprinted in 12 
M. Whiteman, supra note 88, at 21 1. 

100. 19 U.N. SCOR (1174th mtg.) at 13, U.N. Doc. S/P.V. 1174 (1964), reprinted in 52 

Dept. St. Bull. 17 (1965). 

101. 51 DEPT. ST. BULL. 846 (1964). 

102. See supra note 99. See also Cleveland, The Evolution of Rising Responsibility, 52 DEPT. ST. 
BULL. 7, 9 (1965). For the Congolese note authorizing the operation, see supra text 
accompanying note 93. 

103. A point repeatedly made by Professor Brownlie and other critics of the doctrine of 
humanitarian intervention. See, e.g., Brownlie, Thoughts on Kind-Hearted Gunmen, in 
Humanitarian Intervention and The United Nations 139, 143-44 (R. Lillich ed. 1973). 

104- These requirements have been summarized conveniently by Farer, The Regulation of 
Foreign Intervention in Civil Armed Conflict, 142 Recueil Des Cours (Hague Academy of 
International Law) 297, 394 (1974-11), as follows: 

(1) that there be an immediate and extensive threat to fundamental human rights; 

(2) that all other remedies for the protection of those rights have been exhausted to the 
extent possible within the time constraints posed by the threat; 

(3) that an attempt has been made to secure the approval of appropriate authorities in 
the target State; 

(4) that there is a minimal effect on the extant structure of authority (e.g., that the 
intervention not be used to impose or preserve a preferred regime) ; 

(5) that the minimal requisite force be employed and/or that the intervention is not 
likely to cause greater injury to innocent persons and their property than would result if 
the threatened violation actually occurred; 

(6) that the intervention be of limited duration; and 

(7) that a report of the intervention be filed immediately with the Security Council and 
where relevant, regional organisations. 

105. 19 U.N. SCOR Supp. (Oct.-Dec. 1964) at 189, U.N. Doc. S/6062 (1964), reprinted in 12 
M. Whiteman, supra note 88, at 212-13. 

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106. See supra text at notes 80-90. "It is clear from the statements of the rescued persons 
themselves that further delay would have meant an even greater number of wanton and tragic 
killings. Time, for the lives of those people, was calculable only in minutes." 19 U.N. SCOR Supp. 
(Oct.-Dec. 1964) at 195, U.N. Doc. S/6068 (1964) (Letter from Ambassador Stevenson to the 
President at the Security Council), reprinted in American Foreign Policy — Current Documents 1964, 
at 771 (1967). Accord, 19 U.N. SCOR Supp. (Oct.-Dec. 1964) at 194, U.N. Doc. S/6067 (1964) 
(Letter from the Belgian Ambassador to the President of the Security Council): "All [rescued 
hostages] stress their conviction that they owe their lives only to the intervention in extremis of the 
Belgian paratroops." 

See also the statement by Under Secretary of State Ball that prior to the airdrop "the situation 
was deteriorating to the point where we felt that it couldn't hold very much longer, and, in fact, Mr. 
Hoyt, who is our consul in Stanleyville and who has been one of the hostages for 3 months, has told 
us, first of all, that it was the opinion of everyone there that if this had gone 24 hours longer they 
would all have been executed — they were going to be lined up against the wall — and, secondly, that 
only the airdrop saved their lives." 51 DEPT. ST. BULL. 843 (1964). 

107. A quarter century ago the present writer, perhaps unduly reflecting official US reaction, 
remarked that "the criticism heaped upon the United States for its role in this humanitarian venture 
comes as something of a surprise." R. Lillich, Intervention to Protect Human Rights, 15 McGill L.J. 205, 
214 (1969) But see R. Falk, Legal Order in a Violent World 326 (1968). 

108. These factors are taken from an excellent review of the UN debates found in a Note, The 
Congo Crisis 1964: A Case Study in Humanitarian Intervention, 12 Va. J. Int'l L. 261, 266-74 (1972), 
written by Howard L. Weisberg, Esq., Class of 1973, University of Virginia School of Law and 
Member of the Maryland and District of Columbia Bars, under the supervision of the present writer. 

109. The following quote from a speech by the delegate from the Congo Republic (Brazzaville) is 
illustrative: "Why, in a conflict in which the Congolese are fighting between themselves, should there 
be no concern for the safety of the civilian population in general and why should the fate of the whites 
be the sole consideration?" 19 U.N. SCOR (1 170th mtg.) at 14, U.N. Doc. S/P.V. 1 170 (1964). One 
writer, reviewing the operation, has suggested, somewhat cynically, that "[t]he State Department's 
humanitarian concerns were aroused only when it appeared that Americans and Europeans might be 
the next victims." R. Garnet, supra note 15, at 249. See infra text at note 111. 

110. They were slain, of course, not by the Belgian paratroopers, but by the white mercenary-led 
ANC that reached Stanleyville several hours after the airdrop began. The time of the ANC's arrival 
has been put at "soon after nine o'clock" by I. Colvin, supra note 75, at 194, and as "[a]t 10:30 a.m." 
by D. Reed, supra note 75, at 261. See infra text at and accompanying note 138. 

111. Garnet's criticism of the United States' slowness in acting (see supra text accompanying note 
109) seems particularly unfair in view of his caustic comments on the rescue operation itself. See R. 
Garnet, supra note 15, at 250-51. One can imagine what his reaction to an earlier humanitarian 
intervention would have been! 

1 12. 19 U.N. SCOR (1 173d mtg.) at 12, U.N. Doc. S/P.V. 1 173 (1964). See generally supra text at 
notes 95-97. 

1 13. See supra text at note 79. See also supra text at notes 86-90. 

114. 19 U.N. SCOR (1175th mtg.) at 23, U.N. Doc. S/P.V. 1175 (1964). 

115. When Attwood informed President Kenyatta of Kenya, who was chairman of the OAU Ad 
Hoc Commission on the Congo, "that the paratroopers might have to mount a humanitarian rescue 

operation as a last resort," the latter "look pained" and replied that "'that would be very bad "' W. 

Attwood, supra note 79, at 214. Later, in response to Attwood's plea to remain friends, he stated 
frankly that '"[w]e can be friends. . . only if you stop being friends with Tshombe." Id. at 215. 

1 16. See supra text at and accompanying note 102. 



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117. W. Attwood, supra note 79, at 218-19. Omitted at the end of the second paragraph of the 
above quote are parentheses containing the following sentence: "The orgy of looting and killing that 
followed the capture of Stanleyville by the ANC was so bad that the Belgian paratroop commander 
was glad to pull his men out of the city for fear they'd start fighting the mercenaries." Id. at 218. See 
infra text at and accompanying note 138. 

118. R. Falk, supra note 107, at 326. In a clause preceding the extract quoted in the text, Falk 
notes that the adverse African reaction "does not mean that the United States should have refused to 
join in the rescue. . . ." Id. Elsewhere he observes that "[t]he case for intervention is not altogether 
capricious since the alternative may be to allow one's countrymen to be slaughtered without 
cause." Id. at 329. Although his view is less than crystal clear on this point, it appears that Falk is 

troubled less by the legality than by "the appearances of the Stanleyville Operation " Id. at 33 1 . Cf. 

Grundy, supra note 73, at 251, who affirms the operation's legality more explicitly, but who 
nevertheless criticizes it from from a political perspective, concluding that the United States "was 
fortunate in getting off as easily as it did in the Congo." Id. at 255. 

119. See generally S. Weissman, American Foreign Policy in the Congo 1960-1964, at 226-46 
passim (1974). 

1 20. Whether it actually was a by-product of the rescue operation or one of its principal objectives 
is discussed at infra notes 142-146. 

121. Grundy, supra note 73, at 25 1 . 

122. 19 U.N. SCOR (1174th mtg.) at 13, U.N. Doc. S/P.V. 1174 (1964), reprinted in American 
Foreign Policy — Current Documents 1964, at 777 (1967). 

123. 19 U.N. SCOR (1173d mtg.) at 3-10, U.N. Doc. S/P.V. 1173 (1964). See supra text 
accompanying note 98. 

124. 19 U.N. SCOR (1175th mtg.) at 3-4, U.N. Doc. S/P.V. 1175 (1964). See supra text 
accompanying note 98. 

125. 19 U.N. SCOR (1 183d mtg.) at 14, U.N. Doc. S/P.V. (1964). "Bolivia thinks that this was 
clearly a rescue operation, regrettable from the political point of view of sovereignty, but essential 
morally and duly authorized by the legally responsible Government of the Congo." 

126. 19 U.N. SCOR (117th mtg.) at 19-20 U.N. Doc. S/P.V. 1177 (1964): 

Such an operation finds its justification in the very objective which inspired it, which 
was to frustrate the perpetration of a crime, recognized as such by international law 
and by all the norms of conduct governing relations among States, which consists in 
the use of innocent civilians as hostages, as a bargaining point in wartime. . . . 
Therefore the humanitarian action taken to save the lives of the hostages seems 
legitimate to the delegation of Brazil, both in regard to its means and to its 
motivations. 

127. 19 U.N. SCOR (1177th mtg.) at 26, U.N. Doc. S/P.V. 1177 (1964): "In the circumstances, 
my delegation is fully satisfied with the statements made in this Council by the repesentatives of 
Belgium and the United States that the operation was necessary to save the lives of the hostages, and 
that it was a humanitarian mission, and nothing more." 

128. See infra text at notes 135-141. 

129. "[I]t is repugnant to use as a pretext the uncertainty of the fate of some 1,500 foreigners in 

order to attack a country and to interfere in its domestic affairs " 19 U.N. SCOR (1 178th mtg.) at 

10, U.N. Doc. S/P.V. 1178 (1964) (Morocco). Several other States used the same or similar 
language. "The use of the term 'pretext,' " as has been pointed out, actually "suggests a recognition of 
the concept of humanitarian intervention [or forcible protection] , for such a charge tacitly admits the 
legitimacy of the subject matter to which that pretense is applied." Note, supra note 108, at 269. See 
infra text at notes 142-146. 

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Forcible Protection of Nationals Abroad 



130. Attempting to rebut an earlier assertion of this thesis, see R. Lillich, Humanitarian 
Interx'entknv. A Reply to Dr. Brownlie and a Plea for Constructive Alternatives, in Law and Civil War in 
The Modern World 229, 243 0-N. Moore ed. 1974), Professor Farer states that "to have legal 
significance for [Lillich, the African complaints! would apparently have to have assumed the form of 
flat claims of illegality." Farer, supra note 104, at 396. This characterization of the present writer's 
views obviously goes too far and reveals Farer, as is his wont upon occasion, once again setting up a 
straw man for easy demolition. Surely the fact that only a handful of States condemned the rescue 
operation on legal grounds is not entirely irrelevant to an assessment of its legality under international 
law, which after all is the issue at hand. 

131. S.C. Res. 199, 19 U.N. SCOR Supp. (Oct.-Dec. 1964) at 328, U.N. Doc. S/6129 (1964) 
(100-1), reprinted in American Foreign Policy — Current Documents 1964, at 786 (1967). 

132. Replying to a suggestion by the Ghanaian delegate that the resolution impliedly condemned 
the rescue operation, Ambassador Stevenson stated: "I think it is quite clear from the statements 
made during this debate that the overwhelming majority of the members of this Council do not so 
interpret that paragraph of the resolution. The fact that my delegation has voted for the resolution as 
amended makes it perfectly clear that we do not so interpret it." 19 U.N. SCOR (1 189th mtg.) at 12, 
U.N. Doc. S/P.V. 1 189 (1964), reprinted in American Foreign Foreign-Current Documents 1964, at 
789 (1967). 

Farer faults the present writer for " [finding] comfort in the failure of the Security Council to 
condemn Humanitarian Intervention as such or the United States and Belgium, as if Security 
Council condemnation of those States were a conceivable option in the world of 1964." Farer, supra 
note 104, at 396-97. His point may be well- taken, but it does not take one very far. The fact that the 
Security Council condemned neither the operation nor the States undertaking it certainly has some 
relevance. Even in "the world of 1964" the censure of a permanent member of the Security Council 
for an illegal use of force was not out of the question, as witness the formal condemnation of Great 
Britain the same year for a reprisal it had undertaken against Yemen. S.C. Res. 188, 19 U.N. SCOR 
Supp. (Apr.-Sept. 1964) at 9, U.N. Doc. S/5650 (1964) (9-0-2). See Lillich, supra note 130, at 244. 

133. "After the Congo debates, the legal principle of Article 2(4) remains, but what that Article 
means has been altered by political evaluation. There is now an unwillingness on the part of the world 
community to read Article 2(4) as an absolute prohibition on the use of force in humanitarian 
intervention." Note, supra note 108, at 274. 

134- Compare the fifth and fourth requirements, respectively, of the traditional doctrine of 
humanitarian intervention, as summarized by Farer in the supra text accompanying note 104. 

135. D. Reed, supra note 75, at 268. 

136. According to Ambassador Stevenson, "only a very small number of rebels were killed as a 
consequence of that operation and these only in self-defense or because they were at the moment 
resisting attempts to rescue the hostages." 19 U.N. SCOR (1174th mtg.) at 12, U.N. Doc. S/P.V. 
1 174 (1964), reprinted in American Foreign Policy — Current Documents 1964, at 776 (1967). Cf. D. 
Reed, supra note 75, at 259: "As far as anyone could tell, none of the Simbas who carried out the 
massacre was killed by the paratroopers. They all ran at the last minute." Compare infra text at and 
accompanying note 138. 

137. Id. at 264. "Two men were wounded by gunfire and three were injured in the drop. None of 
the American airmen was hurt." Id. 

138. See supra text accompanying note 117. See also D. Reed, supra note 75, at 264: 

The mercenaries and the ANC were running wild in Stanleyville. They shot every 
Congolese they saw. They looted homes and stores. ... A mercenary patrol paid a visit 
to the city zoo. They found that the lions were ravenously hungry. Gleefully, they 
released the lions, who ran off into the city. 



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Colonel Laurent, the mild-mannered commanding officer of the paratrooper regiment, 
was horrified. "I never saw such a bloodbath in my life," he said. "No prisoners were taken. 
They were shot up, cut up or beaten to death. It was brutal." 

Laurent did not want the young paratroopers to see what was going on. He ordered his men to return 
to the airfield as soon as they had rescued everyone. 

139. Id. at 273. 

140. Although one "revisionist" historian, misciting Reed for support, has contended that the 
airdrops themselves "resulted in the execution of perhaps 300 whites. . . ." S. Weissman supra note 
119, at 248. 

141. In response to a complaint about "the terrible massacre" that occurred at Stanleyville, the 
British minister responsible replied that "[i]n my view, if the troops which were advancing overland 
to Stanleyville had advanced without the intervention of this aerial operation, I am convinced that 
the loss of life would have been much greater than it has been." 702 Pari. Deb., H.C. (5th ser.) 
1278-79 (1964) (Mr. Thomson). For further speculations pro and con, see S. Weissman, supra note 
119, at 253. 

Colvin concludes that "[a] parachute drop was probably necessary," but that instead of the tactics 
that were adopted " [t]he parachute drops should have been planned in triple strength within hours of 
each other at Stanleyville, Paulis and Bunia." I. Colvin, supra note 75, at 196. As events transpired, 
the delay in mounting the Paulis airdrop caused many additional casualties there; moreover, a 
contemplated airdrop on Bunia never took place. D. Reed, supra note 75 at 271-72. 

142. See, e.g., R. Garnet, supra note 15, at 250; R. Falk, supra note 107, at 333; Farer, supra note 
104, at 394-96; Grundy, supra note 73, at 250-52; and S. Weissman, supra note 119, at 249-51. 

143. See, e.g., Professor Frey-Wouters, Remarks, in Humanitarian Intervention and the United 
Nations, supra note 103, at 58 n.5. 

144. Even Weissman acknowledges that "[tlhe rescue motivation seems to have been 
predominant. . . ." S. Weissman, supra note 119, at 252 n.106. See also id. at 251, where he contends 
that a "secondary objective" of the rescue operation was to help the ANC recapture Stanleyville. 

145. Id. at 250. See supra text accompanying note 106. 

146. See supra text at note 122. 

147. For background information about the crisis as well as detailed descriptive accounts of it, see 
T. Draper, The Dominican Revolt (1968); D. Kurzman, Revolt of the Damned (1965); A. 
Lowenthal, The Dominican Intervention (1972); J. Slater, Intervention and Negotiation (1970); 
and T. Szulc, Dominican Diary (1965). See also J. Moreno, Barrios In Arms (1970). For differing 
views on the legal issues involved, compare Fenwick, The Dominican Republic: Intervention or Collective 
Self -Defense, 60 Am. J. Int'l L. 64 (1966), with Bohan, The Dominican Case: Unilateral Intervention, 
60 id. 809 (1966). For a useful monograph, prepared under the supervision of the present writer and 
drawn upon throughout this Section, see J. Tuttle, The Case Study of the Dominican Crisis — 1965: 
The Legality of the United States Action (1969) (unpublished thesis, U.S. Naval War College 
Library). 

148. T. Szulc, supra note 147, at 13. How much assistance actually was given, as opposed to being 
authorized, is not entirely clear. See J. Slater, supra note 147, at 13-14 and accompanying note. 

149. For a sampling of opposition criticism — reasoned, biased and vitriolic — see J. Moreno, supra 
note 147, at 18-19. 

150. Slater absolves Bosch of serious charges of maladministration, observing that "it is far from 
clear that anyone could have survived [as President], at least without making such far-reaching 
concessions to the forces of reaction as to make survival almost pointless. As Jose Figueres has put it, 
'God Himself would have done a bad job in the Dominican Republic.'" J. Slater, supra note 147, at 15. 

151. American Foreign Policy: Current Documents 1963, at 322 (1967). 

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Forcible Protection of Nationals Abroad 



152. Id. at 359. The reversal of policy was in train long before President Kennedy's assassination. 
"Thus, the usual interpretation of this period, seeing great significance in the fact that Johnson 
recognized the Dominican junta only three weeks after the assassination of Kennedy and stressing 
the sharp contrast between the Kennedy and Johnson policies toward the coup, is quite wrong." J. 
Slater, supra note 147, at 16-17. 

153. 14., at 19. 

154- Indeed, US Ambassador W. Tapley Bennett, who had become increasingly concerned over 
the deteriorating situation in the Dominican Republic, wrote prophetically to the Department of 

State in early April that "[l]ittle foxes, some of them red, are chewing at the grapes A diminution 

of our effort or failure to act will result in a bitter wine." Quoted in R. Stebbins, The United States In 
World Affairs 1965, at 74-76 (1966). Both Bennett and Reid were in receipt of intelligence reports 
about planned coups, but they did not anticipate one before June, when campaigning for the 
presidential election was scheduled to start. Center for Strategic Studies (Georgetown University) , 
Dominican Action — 1965: Intervention or Cooperation. 7 , at 9 (1966). 

155. J. Slater, supra note 147, at 19. 

156. Id at 22. 

Until that point, the civilians working with the constitutionalists were mostly 
middle-class, college-educated students, lawyers, engineers, technicians, and young 
businessmen, frustrated by a system in which they had no purpose and no meaningful 
future. With the passing out of the arms large sectors of the urban lower class joined 
the ranks, giving the movement something of a mass base as well as providing most of 
the actual combatientes. 

157. The case of General Wessin, who commanded most of the Dominican Republic's tanks and 
1,500 of its Army's crack troops, best illustrates the response of the military leaders to Reid's appeal. 
Neither the tanks nor the troops moved from the San Isidro Air Base while Reid remained in office. 
Center for Strategic Studies (Georgetown University), supra note 154, at 11. 

158. Draper, supra note 147, at 55-56. 

159. Id. at 57; J. Slater, supra note 147, at 22. 

160. J. Slater, supra note 147, at 23 note. 

161. T. Draper, supra note 147, at 57. 

162. In 1968, Antonio Martinez Francisco, the Secretary General of the PRD during the 
revolution, said that the original agreement between Bosch and sympathetic military 
men called for a military junta to rule the country temporarily after the overthrow of 
the Reid government, pending the holding of new elections within ninety days. Once 
Reid had fallen, Martinez charges, Bosch ignored the agreement and called for a 
return to 'constitutionality,' that is, the immediate restoration of his Presidency. 

J. Slater, supra note 147, at 23 note. 

163. Id. at 23-24. 

164. Id. at 25. 

165. See infra text at notes 172-173. President Johnson, relying upon such reports, subsequently 
claimed that "some 1,500 innocent people were murdered and shot, and their heads cut off . . ." 
Johnson, An Assessment of the Situation in the Dominican Republic, 53 DEPT. St. BULL. 19, 20 (1965). 
As Slater observes: 

not only was not a single American attacked but there were remarkably few 
constitutionalist atrocities of any sort. What few attacks did occur were highly 
selective, aimed almost exclusively at a few extreme rightists, and then mainly at their 

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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



property. Indeed, many more innocent citizens died as a result of the Air Force 
bombing and strafing than at the hands of the constitutionalists. 

J. Slater, supra note 147, at 33. 

166. For a graphic description of the scene in Santo Domingo at about this time, see Szulc, supra 
note 147, at 18: 

[I]n the ancient Dominican capital blood was flowing freely. Rebel army units and civilian 
bands were firing across the city at the positions of the Wessin forces. Planes streaked 
overhead, machine gunning the streets and dropping bombs on the rebels and the civilian 
population. Casualties were mounting and hospitals were filling up with the wounded. 

167. Id. at 18 (four day period of April 25-28) ; J. Moreno, supra note 147, at 29 (four day period o{ 
April 27-30). 

168. T. Szulc, supra note 147, at 20-21. 

169. A. Lowenthal, supra note 147, at 85. 

1 70. Johnson, supra note 165, at 2 1 . "The Commander of Task Group 44.9, Captain Dare, had been 
ordered as early as 25 April to proceed to the vicinity of the Dominican Republic and prepare to 
evacuate approximately 1,200 United States nationals if this action should become necessary." Tuttle, 
supra note 147, at 28, citing Dare, Dominican Diary, 91 US Naval Institute Proc. 37, 38 (Dec. 1965). 
Moreover, on the following day — 26 April — the Department of Defense had put on alert a Marine 
brigade at Camp Lejeune and the 82nd Airborne Division at Fort Bragg. T. Szulc, supra note 147, at 29. 

171. See generally T. Szulc, supra note 147, at 31-34, and Dare, supra note 170, at 38-41. 

172. J. Slater, supra note 147, at 33. 

173. Szulc concludes that: 

[T]he embassy's reports on this incident must have been greatly exaggerated because 
President Johnson later spoke of armed rebels running up and down the hotel's corridors 
firing into rooms and closets. Actually, nothing of the sort had occurred, but this 
overwrought reporting by the embassy evidently helped increase the President's concern 
and pushed the United States closer to the ultimate decision to intervene militarily in the 
Dominican Republic. 

T. Szulc, supra note 147, at 33-34. Other accounts reinforce Szulc's views. See T. Draper, supra note 
147, at 105-06, and A. Lowenthal, supra note 147, at 90 & 204 n.27. 

174. US policy even before the revolution had frowned on the return of Bosch to the Presidency, 
and after the revolution began nowhere was that policy more faithfully implemented than at the US 
Embassy: 

[T]he State Department had assigned the two top embassy positions to conservatives who 
instinctively distrusted not only Bosch but the PRD in general, and who had almost no ties 
with even the moderate left. 'Tap didn't seem to know anyone to the left of the Rotary 
Club,' one embassy official is quoted as remarking, while William Connett, the Deputy 
Chief of Mission, 'seemed to be ill at ease with people who were not correctly dressed.' 

J. Slater, supra note 147, at 25. 

175. Although there is absolutely no doubt that Bennett refused US mediation and made 
the accusations mentioned in the text [accusations that PRD officials had allowed 
"communists" to take advantage of the movement and had tolerated looting and 
atrocities], the former Ambassador has denied he told the constitutionalists to 
surrender. However, not only the constitutionalists but Martin [J. Martin, Overtaken 
By Events 653 (1966)] maintain that he did so. 

J. Slater, supra note 147, at 227 n.24. 

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176. Id. at 29. 

177. A participant at the now famous embassy confrontation vividly recalls that at the 
moment when Bennett labeled the revolution 'Communist' and told the leaders to 
surrender, a big, barrelchested man whom he had never seen before jumped to his feet 
and said, 'Son of a bitch! I know what I'm going to do.' It was Francisco Caamano, and he 
was not going to strangle Bennett on the spot as the startled assemblage for a moment 
feared, but was on his way to the bridge to rally his forces for a last-ditch stand. 

Id. at 29-30. 

178. For a succinct account of this turn of events, see id. at 30. 

179. T. Szulc, supra note 147, at 42. 

180. Id. at 44. 

181. Id. Needless to say, in making their second request for US intervention the junta was 
motivated by factors beyond just the protection of US nationals. One such factor was their own 
personal safety. "That night, when the first contingents of the 82nd Airborne Division arrived at San 
Isidro, they found the 'strong man' of the Dominican armed forced, the dreaded Wessin y Wessin, in 
tears: 'If you had not come,' he cried, 'they would have killed us.'" J. Slater, supra note 147, at 30-3 1 . 

182. A. Lowenthal, supra note 147, at 101-02. See infra text accompanying note 186. 

183. Id. at 102-03; T. Draper, supra note 147, at 1 18-21; and J. Slater, supra note 147, at 30. 

184. Speaking of this decision at a news conference on 17 June 1965, the President noted that 
"[i]t was a decision we considered from Saturday until Wednesday evening. But once we made it, in 
the neighborhood of 6:00 or 6:30 that evening, they landed within one hour." Johnson, supra note 
165, at 21. 

185. Dare, supra note 170, at 42. The President, according to one commentator, authorized the 
landing of only 500 Marines. A. Lowenthal, supra note 147, at 103. Other commentators give the 
number of Marines landed that evening as about 400. T. Szulc, supra note 147, at 73. 

186. 52 DEPT. ST. BULL. 738 (1965), American Foreign Policy: Current Documents 1965, at 956 
(1968) [hereinafter cited as American Foreign Policy - 1965] . Actually, although Colonel Benoit had 
made such representations to Ambassador Bennett, they were not contained in the junta's written 
request. See supra text at notes 180-182. Their omission so concerned Under Secretary of State 
Thomas Mann that, following President Johnson's decision to land US troops, he purportedly called 
Bennett and asked him to obtain from Benoit "a written statement for the record asking for US 
military assistance to restore order and specifically mentioning the need to protect American lives." 
A. Lowenthal, supra note 147, at 104. Accordingly, by early Thursday morning, 29 April 1965, 
Benoit dispatched a follow-up communication to the US Embassy: 

Regarding my earlier request, I wish to add that American lives are in danger and 
conditions of public disorder make it impossible to provide adequate protection. I 
therefore ask you for temporary intervention and assistance in restoring order in this 
country. 

Senate Comm. on the Judiciary, 89th Cong., 1st Sess., Organization of American States Combined 
Reports on Communist Subversion 1 14 (Comm. Print 1965). 

As Szulc notes — and as Mann, of course, well knew — Benoit's request, "if nothing provided the 
legal justification for a United States landing if Washington chose to play it that way. It was 
somewhat reminiscent of the 1958 situation in Lebanon, where United States Marines landed at the 
request of President Camille Chamoun to help him restore order." T. Szulc, supra note 147, at 44- 
Compare supra text at and accompanying notes 37, 50 & 93, and infra text at and accompanying note 
204. 

187. 52 DEPT. ST. BULL. 738 (1965), American Foreign Policy-1965, supra note 186, at 956. 

188. T. Szulc, supra note 147, at 73. 



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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



189. Id. at 78. 

190. 52 DEPT. ST. BULL. 742 (1965), American Foreign Policy - 1965, supra note 186, at 956. 
According to the President, US troops eventually evacuated 5,600 people from 46 countries from the 
Dominican Republic. Johnson, supra note 165, at 20. 

191. 52 DEPT. ST. BULL 742, American Foreign Policy - 1965, supra note 186, at 956-57. The US 
Representative to the OAS, Ellsworth Bunker, had made a similar argument before the OAS 
Council of Ministers earlier the same day. Id. at 957-58. 

192. T. Szulc, supra note 147, at 90. 

193. 52 DEPT. ST. BULL 743 (1965), American Foreign Policy - 1965, supra note 186, at 959. 

194. Id. at 745, American Foreign Policy - 1965, supra note 186, at 962-63. 

195. Id. at 746, American Foreign Policy - 1965, supra note 186, at 963. 

196. Id., American Foreign Policy - 1965, supra note 186, at 963-64. 

197. For the text of this resolution, see Senate Comm. on For. Rels., 89th Cong., 1st Sess., 
Background Information Relating to the Dominican Republic 52 (Comm. Print 1965). 

198. For the text of this resolution, see 52 DEPT. ST. BULL. 862 (1965). The vote on the 
resolution, which required a two-thirds majority, was 15 for, 5 against (Chile, Ecuador, Mexico, Peru 
and Uruguay), and one abstention (Venezuela). Id. 

199. N.Y. Times, Sept. 23, 1966, at 3, col 1. 

200. See, e.g., the remarks of the Legal Adviser along these lines in Meeker, The Dominican 
Situation in the Perspective of International Law. 53 DEPT ST. BULL. 60, 62 (1965): 

We landed troops in the Dominican Republic in order to preserve the lives of foreign 
nationals — nationals of the United States and many other countries. We continued 
our military presence in the Dominican Republic for the additional purpose of 
preserving the capacity of the OAS to function in the manner intended by the OAS 
Charter. 

201. See generally Humanitarian Intervention and the United Nations, supra note 103, at 76-82 
passim. There is no doubt that "the US attempted to legitimize its military action by securing approval 
of the OAS." Frey-Wouters, The Prospects for Regionalism in World Affairs, in 1 The Future of the 
International Legal Order 463, 536 (R. Falk & C. Black eds. 1969). Whether the various OAS 
resolutions constituted legitimation or merely acquiescence, however, is another matter. Prof. 
Frey-Wouters believes the Dominican intervention an example of how the United States often has 
sought OAS approval to provide "a multilateral legitimacy for essentially unilateral US action." Id. at 
539. 

202. See e.g., A. Thomas & A. Thomas, Working Paper, in The Dominican Crisis 1965 - Legal 
Aspects 1 (Hammarskjold Forum, J. Carey ed. 1967); McLaren, The Dominican Crisis: An 
Inter American Dilemma, 4 Canadian Y.B. Int'l L. 178 (1966); and Nanda, The United States Action in 
the 1965 Dominican Crisis: Impact on World Order - Part 11, 44 Denv. L.J. 225 (1967). 

203. On 21 May 1965, the United States, Great Britain, Bolivia, China, Netherlands, and 
Northern Ireland all voted against a Soviet Union-sponsored resolution initially submitted to the 
Security Council on 4 May that would have condemned what it labeled US armed intervention in 
the internal affairs of the Dominican Republic. 20 U.N. SCOR (1214th mtg.) at 22, U.N. Doc. 
S/6328 (1965). Great Britain stated it "fully understood the reasons for the United States emergency 
action" and thanked the United States for evacuating British subjects from the country, 2 UN 
Monthly Chron., No. 6 at 6 (1965), while France, acknowledging US interest in protecting its 
nationals there, cautioned that "such operations must be limited in objective, duration, and scale, or 
run the risk of becoming armed intervention, for which there appeared to be no need in this case." Id. 
at 7. France's position seemed to recognize the necessity of the US action, while gently questioning its 
proportionality. On these two limitations on the right of forcible protection, see "Nanda, The United 

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States Action m the Dominican Crisis: Impact on World Order - Part I, 43 Denv. L.J. 439, 462-71 (1966), 
who concludes that "while the necessity of the [US] action can be defended on humanitarian 
grounds, the proportionality cannot be justified." Id. at 479. Compare infra text at note 209. 

204. Ill Cong. Rec. 23855, 23857 (1965): 

In midafternoon of April 28 Col. Pedro Bartolome Benoit, head of a junta which had been 
hastily assembled, asked again, this time in writing, for US troops on the ground that this 
was the only way to prevent a Communist takeover; no mention was made of the junta's 
inability to protect American lives. This request was denied in Washington, and Benoit 
was thereupon told that the United States would not intervene unless he said he could 
not protect American citizens present in the Dominican Republic. Benoit was thus told in 
effect that if he said American lives were in danger the United States would intervene. 
And that is precisely what happened. 

Compare supra text accompanying note 186. 

205. 1 1 1 Cong. Rec. 23857 (1965). 

206. Id. at 23858. 

207. But see, e.g., Fenwick, supra note 147. 

208. Nanda, supra note 203, at 471. 

209. Id. at 472. Compare supra text accompanying note 203. 

210. Friedmann, United States Policy and the Crisis of International Law, 59 Am. J. Int'l L. 857, 867 
(1965), citing Waldock, The Regulation of the Use of Force by Individual States in International Law, 81 
Recueil des Cours (Hague Academy of International Law) 451, 467 (1952). 

211. Friedmann, supra note 210, at 869. He subsequently reiterated and elaborated his views as 
follows: 

There was a general consensus on the original US position of intervening to protect 
American lives and property and the sending in of a battalion; that is, it can be justifed . . . 
in the limited sense that it is strictly limited to nationals, and therefore it is an extension of 
national interests intervention. That had been previously stated by international lawyers 
as a justifiable cause of intervention. . . . 

Then came the radical shift which Johnson made by his famous statement that totally 
altered the situation and made it clear, I think, beyond a shadow of a doubt, that the 
subsequent massive and prolonged intervention was contrary not only to the U.N. 
Charter but to the OAS Charter; namely, intervention in the internal affairs of another 
small power by a big power, in order to effect a change of political regime. 

Remarks, in Humanitarian Intervention and the United Nations, supra note 103, at 81-82. 

212. Lillich, Remarks, in id. at 10: 

When you are talking about evacuating citizens, this is a limited objective, and, of course, 
you must evacuate them as rapidly as possible. Applying this to the Dominican context, . . . 
it would, I would assume, justify perhaps the first day or so, but it wouldn't justify the 
22,000 Marines for six months. 

For the views of other participants, see id. at 76-82. 

213. See text accompanying note 211. 

214. For a particularly outspoken warning, see Rogers, Remarks, in Humanitarian Intervention 
and the United Nations supra note 103, at 72: 

We see the constant misuse of the excuse of protection of one's own nationals for great 
power purposes, most recently, of course, in the movement of the Sixth Fleet into the Bay 
of Bengal — which was justified for a short moment by Kissinger's preposterous idea that it 



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was going to be used for the protection of US nationals — a shocking rationalization for a 
great power ploy. 

215. R. Lillich, Forcible Self Help by States to Protect Human Rights, 53 Iowa L. Rev. 325, 344 
(1967). 

216. For background information about the hostage crisis as well as detailed descriptive accounts 
of it, see, e.g., J. Bill, The Eagle and the Lion: The Tragedy of American-Iranian Relations (1988) ; W. 
Christopher et al., American Hostages in Iran: The Conduct of a Crisis (1985) [hereinafter cited as 
Christopherl ; G. Sick, All Fall Down: America's Tragic Encounter with Iran (1985). See also The 
Iranian Hostage Crisis: A Chronology of Daily Developments, Report Prepared for the Committee 
on Foreign Affairs, US House of Representatives, by the Congressional Research Service, Library of 
Congress, 97th Cong., 1st Sess. (1981). 

217. Case Concerning United States Diplomatic and Consular Staff in Tehran (US v. Iran) 
(Merits), 1980 I.C.J. 3, 30-33 (Judgment of May 24) [hereinafter cited as Hostages Case-Merits]. 

218. Id. at 33-35. On 18-20 November 1979, however, Iran did release 13 women and black 
hostages "not considered spies." Their release was a unilateral Iranian gesture, not the result of 
negotiations. "[It] was probably seen in Tehran as a step to portray the regime as humanitarian and 
intent only on exposing the US government and its 'nest of spies.' " Saunders, Diplomacy and Pressure. 
November 1979-May 1980, in Christopher, supra note 216, at 79. Although another hostage who 
became ill was released in July 1980, Saunders, The Crisis Begins, in Christopher, supra, at 68, Iran 
continued to hold the remaining 52 hostages until their release on 20 January 1981 following the 
so-called Algiers Accords, 20 I.LM. 223 (1981). 

219. The Ayatollah Khomeini, the de facto head of Iran's revolutionary government, endorsed 
the students' demands in a decree issued on 17 November expressly declaring that "the premises of 
the Embassy and the hostages would remain as they were until the United States had handed over 
the former Shah for trial and returned his property to Iran." Hostages Case-Merits, supra note 217, at 
34. 

220. He learned of their trip from a report on the NBC evening news that Press Secretary Jody 
Powell had attempted to dissuade the network from carrying. Saunders, Diplomacy and Pressure, in 
Christopher, supra note 216, at 76. Saunders is justifiably critical of NBC's action, taken despite the 
knowledge that it might jeopardize a sensitive mission. 

221. Id. at 76-77. 

222. S.C. Res. 457, 34 U.N. SCOR, Res. & Dec. at 24, U.N. Doc S/RES/457 (1979). 

223. S.C. Res. 461, 34 U.N. SCOR, Res. & Dec. at 24-25, U.N. Doc. S/RES/461 (1979). Eleven 
States voted for the resolution, with the Soviet Union, Czechoslovakia, Kuwait and Bangladesh 
abstaining. 80 DEPT. St. BULL 68 (Feb. 1980). 

224. The text of the draft resolution may be found in 80 DEPT. ST. BULL. 70-71. Ten States voted 
for the resolution, the Soviet Union and the German Democratic Republic voted against it, 
Bangladesh and Mexico abstained, and China did not participate. Id. 

225. Case Concerning United States Diplomatic and Consular Staff in Tehran (US v. Iran) 
(Provisional Measures), 1979 I.C.J. 7, 12 (Order of Dec. 15) [hereinafter Hostages Case- 
Provisional Measures] . See generally Mendelson, Interim Measures of Protection and the Use of 
Force by States, in The Current Legal Regulation of the Use of Force 337 (A. Cassese ed. 1986). 

226. Hostages Case-Provisional Measures, supra note 225, at 21. 

227. Id. 

228. See supra text at notes 222-223. 

229. They are described in considerable detail in Saunders, Diplomacy and Pressure, in 
Christopher, supra note 216, at 102-45. 

230. Hostages Case-Merits, supra note 217, at 21. 

91 



Forcible Protection of Nationals Abroad 



231. See Saunders, Diplomacy and Pressure, in Christopher, supra note 216, at 135: 

After an 8-3 vote in the Revolutionary Council, the issue was taken to Khomeini on April 
6. Confirmed reports told us that Khomeini had asked whether the recommendation of 
the Revolutionary Council [to transfer the hostages] was unanimous. When he was told 
that there were three negative votes — Ayatollah Beheshti and two other 
clerics — Khomeini refused to approve the Council's recommendation. 

232. Id. 

233. For inside descriptions of the rescue operation and why it failed, see C. Beckworth & D. 
Knox, Delta Force (1983); P. Ryan, The Iranian Rescue Mission: Why It Failed (1985); Sick, Military 
Operations and Constraints, in Christopher, supra note 216, at 154-64- See also the 78 page study by 
the Special Operations Review Group, headed by Admiral J. L. Holloway, III, entitled "Rescue 
Mission Report," distributed in Washington, D.C., during the summer of 1980. 

234- The first landed in the desert, with its crew being taken aboard another helicopter that 
proceeded to the landing site. The second returned to the USS Nimitz- Sick, Military Operations and 
Constraints, in Christopher, supra note 216, at 158. 

235. Id. at 159. At 1 A.M. [EST] on 25 April the White House issued an announcement of the 
operation's failure, whose purpose and timing was "intended to insure that Iran would not mistake 
the events at Desert I for an invasion attempt and retaliate against the hostages." Id. 

236. 80 DEPT. ST. BULL. 38 Qune 1980). 

237. Id. (emphasis added). 

238. Letter from the President to the Speaker of the House and the President Pro Tempore of the 
Senate, 80 DEPT. ST. BULL 42, 43 Qun 1980). 

239. 35 U.N. SCOR Supp. (Apr.-Jun.) at 28, U.N. Doc. S/13908 (1980) (Letter from 
Ambassador McHenry to the President of the Security Council). 

240. Great Britain, Italy and the other European Community Member States supported the US 
action, as did Australia, Canada, Egypt, Israel and Japan. See N. Ronzitti, Rescuing Nationals Abroad 
Through Military Coercion and Intervention on Grounds of Humanity 45-47 (1985). In addition to 
Iran, the Soviet Union, China and Cuba, as well as India, Pakistan and Saudi Arabia, condemned it. 
Id. at 47-48. 

241. But see the Italian statement justifying the action under international law which, while 
"hardly a model of legal logicality," appears to reject the US self-defense argument and rest instead 
upon a State's purported inherent right to resort to self-help in such cases. Id. at 46. As explained by 
Professor Ronzitti, the Italian view seems to be that: 

The Charter does not abrogate a State's right to resort to self-help, including the use of 
armed force, which belongs to it under customary international law. The Charter simply 
suspends the right to resort to self-help, since it entrusts the Security Council with the 
task of safeguarding the rights of member States. Whenever this mechanism does not 
function, for example when the action of the Security Council is paralysed by veto, the 
States are free to resort to self-help, under the terms permitted by customary international 
law. 

Id. at 46-47. For evaluation of the viewpoint reflected in the Italian statement, one that has received 
support in the past from legal commentators, including the present writer, but has not attracted 
widespread, if any, support from States, see text at supra notes 54-57. 

242. See supra text at note 227. 

243. Dillard, Remarks, in The Iran Crisis and International Law: Proceedings of the John Bassett 
Moore Society of International Law Symposium on Iran 33 (R. Steele ed. 1981) [hereinafter cited as 
The Iran Crisis and International Law] . 



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Contemporary Case Studies of United States Forcible Protection of Nationals Abroad 



244. Hostages Case-Merits, supra note 217, at 43. 

245. Stein, Contempt, Crisis, and the Court: The World Court and the Hostage Rescue Attempt, 76 
Am. J. Int'l L. 499, 500 (1982). While the Court did not expressly find the rescue operation to be 
lawful, a slight tilt towards the recognition of a right of forcible protection of nationals abroad may be 
discernible, at least to some observers, from its failure to condemn the US action per se. See Lillich, 
Remarks, in The Iran Crisis and International Law, supra note 243, at 29 & 32. This point is noted 
and discussed in N. Ronzitti, supra note 240, at 61. In view of the Dissenting Opinions of Judges 
Morozov and Tarazi that condemned and challenged its legality respectively, see infra text at notes 
254-257, one might have expected the Court to have denounced the rescue operation had a 
substantial number of the 13 judge majority believed that it violated the UN Charter. Thus, as in the 
case of the dog that did not bark in the Sherlock Holmes story, the Court's silence on the question of 
whether a right of forcible protection exists may not be entirely without signifcance. C/. N. Ronzitti, 
supra, at 67-68: 

The silence of the Court certainly does not imply that it acquiesces in the theory of the 
legality of a rescue mission through the use of force. However, the Court did not block the 
process leading to the creation of a new rule legitimizing recourse to force to protect 
nationals abroad, which would have been the case if it has censured the use of force in 
those circumstances. 

246. Hostages Case-Merits, supra note 217, at 43. 

247. Stein, supra note 245, at 500 n.7. 

248. The two main and several other arguments are canvassed in this chapter. 

249. Jeffery, The American Hostages in Tehran: The l.C.J. and the Legality of Rescue Missions, 30 Int'l 
& Camp. L.Q. 717, 723 (1981). 

250. Hostages Case-Merits, supra note 217, at 18. See supra note 239. 

251. Id. at 29. 

252. Id. at 42. 

253. Stein, supra note 245, at 500-501 n.8. This reading, of course, may require reassessment in 
light of the Court's later pronouncements on armed attack in the Case Concerning Military and 
Paramilitary Activities In and Against Nicaragua (Nicar. v. US) (Merits), 1986 I.C.J. 14 Qudgment 
of June 27). 

254. Hostages Case-Merits, supra note 217, at 55. 

255. Id. at 56-57. 

256. Id. at 64. 

257. "One can only wonder, therefore, whether an armed attack attributable to the Iranian 
Government has been committed against the territory of the United States, apart from its Embassy 
and Consulates in Iran." Id. at 64-65. 

258. But see supra text accompanying note 253. 

259. Schweppe, Iran: World Court Ruling of December 15, 1979 and May 24, 1980, 14 Int'l Law. 
529,529(1980). 

260. Boyle, International Law as a Basis for Conducting American Foreign Policy: 1 979- 1 982, 8 Yale 
J. World Pub. Order 103, 130 (1982). See also F. Boyle, World Politics and International Law 200 
(1985). 

261. Schweistfurth, Operations to Rescue Nationals in Third States Involving the Use of Force in 
Relation to the Protection of Human Rights, 23 German Y.B. Int'l L. 159, 179 (1980). 

262. N. Ronzitti, supra note 240, at 12, 41-49, 57 & 61-62. 

263. Id. at 65. 

264. Jeffery, supra note 249, at 725. 

265. Id. at 725-26, citing L. Henkin, How Nations Behave 142 (2d ed. 1979). 

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Forcible Protection of Nationals Abroad 



266. Schachter, Intematiorial Law in the Hostage Crisis, in Christopher, supra note 216, at 332. 
Much of the material in Professor Schachter's chapter is taken, often in haec verba, from one of his 
earlier articles. See Schachter, Self-Help in Intematunvil Law: US Action in the Iranian Hostages Crisis, 
37 J. Int'l Affairs 231 (1984). See also Schachter, The Right of States to Use Armed Force, 82 Mich. L. 
Rev. 1620, 1628-33 (1984). 

267. Schachter, Intematioivil Law in the Hostage Crisis, in Christopher, supra note 216, at 334. 

268. Id. at 331. 

269. Professor Schachter introduces his discussion of the topic with the proposition that "article 
5 1 seems on first blush to provide an adequate legal basis for the employment of military force after 
the seizure," id. at 328, and later devotes considerable space to considering whether the requirement 
of "necessity" for self-defense had been met, i.e. whether the hostages were actually in imminent 
danger at the time of the operation. See infra text at notes 284-285. 

270. See e.g., O. Schachter, International Law in Theory and Practice 126, 128, 144 (1991). 

271. See supra text at notes 56-66. 

272. But see Lillich, Remarks, in The Iran Crisis and International Law, supra note 243, at 28 & 39; 
Stein, supra note 245, at 522-23 & n.99. See also Professor Schachter's consideration of the issue 
discussed infra at notes 277-285. 

273. "The requirement of 'necessity' for self-defense is not controversial as a general 
proposition," Schachter, International Law in the Hostage Crisis, in Christopher, supra note 216, at 
329, and it long has been thought applicable in the context of the forcible protection of nationals 
abroad. See, e.g., Waldock, supra note 210, at 467, who formulated three requirements governing the 
right of forcible protection as follows: "There must be (1) an imminent threat of injury to nationals, 
(2) a failure or inability on the part of the territorial sovereign to protect them and (3) measures of 
protection strictly confined to the object of protecting them against injury." He adds that "[e]ven 
under customary [international] law only an absolute necessity could justify an intervention to 
protect nationals." Id. 

For an unusual but interesting examination of the necessity requirement arguing that 
necessity and not self-defense is the proper legal justification of the right of forcible protection, 
see Raby, The State of Necessity and the Use of Force to Protect Nationals, 26 Can. Y.B. Int'l L. 253 
(1988). 

274. Christopher, Introduction, in Christopher, supra note 216, at 12. 

275. Paragraph 3 of the Preamble to the International Convention Against the Taking of 
Hostages, Dec. 17, 1979, G.A. Res. 34/146, 34 U.N. GAOR Supp. (No. 46) at 245, U.N. Doc. 
A/34/46 (1980), incorporates G.A. Res. 31/103, 31 U.N. GAOR Supp. (No. 39) at 186, U.N. Doc. 
A/31/39 (1977), which in Paragraph 4 of its Preamble contains the language quoted in the text. 

276. See infra text at note 274. 

277. Schachter, International Law in the Hostages Crisis, in Christopher, supra note 2 16, at 332. 

278. Id. 

279. Stein, supra note 245, at 522-23. In a footnote to the statement in the text, he goes one step 
further: 

None of the documentation submitted to the Court suggested the existence of a new 
threat to the hostages; indeed, the US assertion that the mission had been carried out 
"in exercise of its inherent right of self-defense with the aim of extricating American 
nationals who have been and remain the victims of the Iranian armed attack on our 
Embassy," [1980] ICJ Rep. 3, para. 32, tends to negate the existence of a new threat to 
the hostages. 

Id. at 523 n.99. 

280. See supra note 236. 



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Contemporary Case Studies of United States Forcible Protection of Nationals Myroad 



281. 80 Dept. St. Bull 40 Qune 1980). 

282. Id. 

283. See supra note 274. 

284. Schachter, International Law in the Hostage Crisis, in Christopher, supra note 216, at 334. 

285. Id. He pointedly adds: "Whether or not the rescue action was wise in a political and military 
sense is, of course, a different matter." 



95 



Chapter V 



Case Studies of Non-United States Forcible 
Protection of Nationals Abroad 



There have been at least 15 instances since the adoption of the United 
Nations Charter in 1945 where legal commentators have claimed that 
the doctrine of "protection of nationals abroad" has, or could have, been in- 
voked by States other than the United States to justify forcible measures under- 
taken in other States. 1 In most of these cases, the State involved relied 
primarily upon a government request or an international agreement and only 
secondarily, if at all, upon the protection of nationals doctrine to justify its ac- 
tions. Moreover, even when a State invoked the doctrine it rarely advanced 
specific international law arguments justifying it. The principal exception oc- 
curred during the Suez Crisis in 1956, when Great Britain claimed, inter alia, 
that its actions against Egypt were taken to protect the lives and property of 
British nationals and as such was an exercise of its inherent right of self-defense 
under Article 5 1 of the UN Charter. 2 

Since the Suez crisis there has been very little discussion in international or 
national forums about the legality of a State's use of forceful means to protect 
its nationals in another State, aside from various U.S. forays into other 
countries. The extended debate over Israel's Entebbe operation being a rare 
exception. 

While the international law discourse emanating from these instances is 
scant, and the data about them often fragmentary, they serve to round out the 
international perspective showing that the United States is not alone in sup- 
porting and, more importantly perhaps, actually invoking the "forcible protec- 
tion of nationals" doctrine. 3 



Forcible Protection of Nationals Abroad 



A. Suez Crisis. 1956. 

Great Britain has justified its 1956 action in the Suez Crisis as necessary for 
the protection of its nationals. Selwyn Lloyd, Secretary of State for Foreign Af- 
fairs, argued that "self-defense undoubtedly includes a situation where the lives 
of the State's nationals abroad are in imminent danger." 4 Asked what armed 
attack had occurred against Great Britain to justify the invocation of Article 5 1 
of the UN Charter, Mr. Lloyd maintained that the British government was not 
foreclosed from taking action to "protect the lives of British subjects abroad un- 
less and until they are expressly authorized by the United Nations to do so." 5 
He countered that "it would be a travesty of the Charter to say that no inter- 
vention can take place until our nationals are actually being attacked and per- 
haps killed." 6 His comments included three criteria for when a protection of 
nationals operation would meet the requirements of customary international 
law. "The first is where there is an imminent threat of injury to our nation- 
als The second is where there is a failure or inability on the part of the terri- 
torial sovereign to protect the nationals in question. The third is where the 
measures of protection are strictly confined to the object of protecting the na- 
tionals against injury." 7 These situations are reflected in the self-defense por- 
tions of articles 39, 40 and 41 of the UN Charter. 

During UN debates, however, other goals also were emphasized, although 
Great Britain consistently invoked the protection-of-nationals rationale. In the 
words of Sir Pierce Dixon, the British representative to the United Nations, 
"British and French lives must be safeguarded. I again emphasize. . . that we 
should certainly not want to keep any forces in the area for one moment longer 
than is necessary to protect our nationals, to help bring the fighting to an end 
and to deal with the very real danger of fighting across the Canal." 8 This justifi- 
cation for the British operation at Suez has been dismissed by almost all com- 
mentators as utterly without merit and illustrative o{ how the right of forcible 
protection may be open to abuse. 9 

B. Belgium in the Congo. I960. 

The Congo gained its independence from Belgium on 30 June 1960. On 5 
July, Congolese troops mutinied and attacked Belgian subjects and other Euro- 
peans. Belgian paratroops entered the Congo on 10 July to evacuate Belgian 
nationals and other foreigners. 10 The next day, the provincial government of 
Katanga proclaimed its independence. The central government, in a letter to 
the UN Secretary-General reacting to the Belgian action and the Katangese 

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Case Studies of Non*United States Forcible Protection of Nationals Abroad 



secession, requested military assistance from the United Nations and claimed 
that the dispatch of Belgian troops to the Congo violated the treaty of friend- 
ship that the two countries had signed on 29 June 1960. Under the terms of 
that treaty, Belgian troops could intervene only at the express request of the 
Congolese government. 11 

In the Security Council, M. Pierre Wigny, the Belgian Foreign Minister, 
cited numerous reports of rape and other atrocities by Congolese troops against 
Belgian nationals. He stated that "we had a right to intervene when it was a 
question of protecting our compatriots, our women, against such excesses. We 
had the most imperative duty to do so." 12 He explained that the operation in 
the Congo was purely humanitarian and strictly proportionate to the objective 
of protecting Belgian lives, 13 and that Belgium would withdraw its troops as 
soon as, and to the extent that, the United Nations effectively ensured the 
maintenance of order and the safety of all foreigners. 14 

On 14 July 1960, the Security Council adopted a resolution calling upon 
Belgium to withdraw its troops from Congolese territory. 15 Subsequent resolu- 
tions urged the Belgian government to withdraw with haste and requested that 
all States refrain from actions that might undermine Congo's territorial integ- 
rity or political independence. 16 

Prime Minister Lumumba of the Congo, in a letter dated 31 July 1960, in- 
formed the Security Council that UN troops, with the help of the Congolese 
army, could protect all foreign nationals removing the need for the Belgian 
presence. 17 The Security Council thereupon once again demanded that Bel- 
gium withdraw its troops from Katanga "under speedy modalities determined 
by the Secretary-General." 18 

The Belgian actions in the Congo seem to be a legitimate use of force for the 
protection of nationals. The French, British, and Italian governments all ap- 
proved and expressed their appreciation. 19 The French representative, M. 
Berard, stated that " [t]heir mission of protecting lives and property is the direct 
result of the failure of the Congolese authorities and is in accord with a recog- 
nized principle of international law, namely, intervention on humanitarian 
grounds." 20 Several nations were critical. Predictively, the Soviet Union and sev- 
eral other States, including Tunisia, Poland and Argentina, denounced the protec- 
tion-of-nationals rationale as a device to mask an illegal armed intervention. 21 

C. France in Mauritania. 1977. 

On 1 May 1977, Polisario guerrillas took six French nationals hostage during 
an attack on the city of Zouerate, an important mining town in northeastern 

99 



Forcible Protection of Nationals Abroad 



Mauritania. Over the course of 1977, the rebels made advances and destroyed 
vital economic centers in Mauritania and on 25 October they took two more 
French nationals as hostages. Consequently, in November 1977 France sent ten 
Jaguar bombers to Mauritania in support of the approximately 12,000 French 
troops who were assisting the Mauritanian army in its fight against the Polisario 
Front. 22 This extensive French military operation in support of the Mauritanian 
government, known as Operation Lamentin, continued until May 1978. 

The first air strikes by the French planes occurred on 12-13 December 1977, 
after Polisario forces attacked a train carrying iron ore from Zouerate to the 
port of Nouadhibou. France responded with a second air strike on 18 Decern- 
ber after a Polisario assault on a Mauritanian garrison near the border with 
Western Sahara. 23 On 23 December, negotiations between French officials and 
Polisario representatives led to the Polisario release of the eight French hos- 
tages to UN Secretary-General Kurt Waldheim in Algiers. 24 

France invoked humanitarian justifications for the air strikes that it had 
undertaken at the request of the Mauritanian government. 25 A letter by M. 
Jacques Leprette, the French representative to the UN, to the president of the 
Security Council, stated that "[i]n the face of the persistent threats directed 
against our compatriots in undisputed Mauritanian territory. . . it is the duty of 
the French government, as it would be the duty of any Government with re- 
spect to its nationals abroad, to provide protection for them." 26 The strikes 
were dual-purposed. They were a response to the abduction of French nation- 
als, and were also a part of Operation Lamentin to combat the Polisario Front 
in Mauritania. 27 Because no rescue mission occurred, however, the invocation 
of the forcible-protection doctrine seems primarily a pretext for the French use 
of force to support the Mauritanian government. 

D. France and Belgium in Zaire. 1978. 

As in 1964, 28 the lives of numerous European citizens, primarily Belgian and 
French, were put at risk in Katanga during disturbances caused by activities of 
the "gendarmes kantangais" who fought for the independence of the prov- 
ince. 29 On 11-12 May 1978, Katangese rebels had entered the province, arriv- 
ing from Angola through Zambia, and occupied the city of Kolwezi. During this 
operation and its aftermath, they killed about 900 people, including an esti- 
mated 120 Europeans. 30 The lives of French and Belgian citizens, therefore, 
were obviously endangered. 31 

On 19 May French troops were air-dropped just to the north of Kolwezi, 
with Belgian troops landing in a separate operation the following day. 32 Both 

100 



Case Studies of Non-United States Forcible Protection of Nationals Abroad 



France and Belgium justified their actions as responses to the request for mili- 
tary assistance by the Zairian government. 33 Indeed, Belgian Prime Minister 
Tindemans actually stated before the Belgian Parliament that Zaire "was a sov- 
ereign State where Belgium could not simply interfere at will and that, conse- 
quently, an authorization from the Zairian authorities was required before 
Belgium could proceed with its rescue operation." 34 This statement represents 
a far more restrictive approach to the forcible-protection-of-nationals doctrine 
than the Belgian Foreign Minister had taken during the 1960 Congo opera- 
tion. 35 On the other hand, French president Giscard d'Estaing justified the op- 
eration as a normal exercise of the legitimate and inalienable right of France to 
protect its citizens abroad. 36 

Most Belgian troops withdrew on 22 May, by which time they had evacuated 
2,269 people to Europe. 37 The French operation, however, continued until 15 
June. 38 Neither action was debated in the Security Council, although several 
European countries expressed their appreciation to France and Belgium, im- 
plicitly endorsing their actions. 39 There seems little doubt that the operations 
undertaken were justifiable under the protection-of-nationals rationale. 

E. France in Mauritania, 1978. 

In May 1978, French Jaguar bombers struck Polisario rebels near the city of 
Zouerate during the final stages of Operation Lamentin. In June 1978, Foreign 
Minister Louis de Guiringaud of France stressed that the location of the air 
strikes against the Polisario forces had occurred on Mauritanian territory where 
French nationals were endangered. 40 Although the 1978 operation did not in- 
volve an evacuation of French nationals, presumably the nationals were indi- 
rectly protected by the assistance to the Mauritanian government in opposing 
the Polisario Front. 

As in case of the 1977 French air strikes in Mauritania, discussed in Section 
C, France did not mount a rescue operation, but rather sought to assist the rec- 
ognized Mauritanian government against Polisario insurgents through military 
measures. The 1978 French air strikes, again then appear pretextual if the 
claim is humanitarian intervention. 

F. France in Chad. 1978. 

Visible Chadian unrest began in July 1977, mainly in the area of Bardai' in 
northern Chad, caused by the rebel group Frolinat (Front de liberation ratio- 
nale du Tchad). 41 By February 1978, the rebels controlled the strategic cities of 

101 



Forcible Protection of Nationals Abroad 



Faya-Largeau and Fada. According to M. Olivier, the French Secretary of State 
to the Foreign Minister, the 4,000 French nationals in Chad, the majority of 
whom lived in the capital city N'Djamena, and in southern Chad, were not in im- 
mediate danger. 42 He informed the French Parliament that the Chadian gov- 
ernment had extended measures to ensure their safety, with the help of the 
French "cooperants" who were present in Chad under the terms of a coopera- 
tion accord that the two States had signed on 6 March 1976. 43 

French Cooperation Minister Robert Galley, however, did not rule out the 
possibility that the Frolinat propaganda campaign being diffused over seized 
Chadian radio stations might necessitate a rescue operation to evacuate 
French nationals. 44 When the rebels approached to within 250 km of 
N'Djamena in April 1978, he invoked the 1976 cooperation accord to justify 
any French action taken against the rebellion, which was lead and armed 
largely from outside the country. 45 At the request of the Chadian government, 
France also increased the number of cooperants to help train the Chadian army 
and sent supplementary units to protect the army training centers. 46 Alto- 
gether, France deployed 2,500 troops to Chad as part of this action, called 
Operation Tacaud, including a regiment of parachutists, two infantry compa- 
nies, one Marine infantry company, and several supporting tactical airplanes 
and Jaguar bombers. 47 Foreign Minister Guiringaud described their objec- 
tive as helping the legitimate government find a political compromise to the 
rebellion. 48 

After three French cooperants were killed, the French government re- 
acted vigorously. 49 As Foreign Minister Guiringaud indicated, the French 
presence in Chad was both at the request of the government and because 
French civilians and cooperants were in danger. 50 Although French troops 
closely guarded the army training centers and communities with large con- 
centrations of French nationals, 51 they made no attempt to stage an evacua- 
tion. On 27 April, French Jaguars provided air cover to Chadian troops 
defending the city of Salal, 52 and on 19 May over 100 French troops gave de- 
cisive help to Chadian forces opposing Frolinat advances at Ati. 53 French 
forces lent support to Chadian forces in other battles, although the number of 
French actively engaged never exceeded 200 to 300 troops. 54 Because French 
troops deployed in Operation Tacaud made no effort to evacuate French na- 
tionals but, rather simply helped the Chadian army turn back Frolinat rebels 
in several important battles, to classify the French operation as a case of forc- 
ible protection is tenuous. 

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Case Studies of Non-United States Forcible Protection of Nationals Abroad 



G. France in Chad. 1979. 

The relations between the Chadian government and rebel factions wors- 
ened over the winter of 1978-79, so again the Chadian government requested 
the assistance of France in its defense against armed rebellion. 55 According to 
the Minister of Foreign Affairs Louis de Guiringaud, on 15 February France be- 
gan preparations to evacuate its nationals. 56 This time, after four French na- 
tionals in Chad were killed in the fighting, the French forces in N'Djamena 
helped repatriate about 2,500 French nationals, virtually the entire French 
population of Chad. Nationals from many other countries were also repatri- 
ated. 57 Because this operation was carried out exclusively by French 
"cooperants" already in Chad at the request of its government, this evacuation 
does not warrant categorization as an instance of forcible protection. 

H. France in Mauritania. 1979. 

In 1979 France again conducted an air operation over the Maurita- 
nian-ruled area of the Western Sahara. The French Minister of Foreign Affairs 
Guiringaud advised Parliament that involvement occurred to counter the 
armed-rebel operations that violated the Mauritanian border and not to target 
the Saharan people. 58 "One cannot claim that our military action in Maurita- 
nia, which was in conformity with article 5 1 of the UN Charter in particular, 
has been contrary to the international obligations of France, nor to the require- 
ments of international law," he stressed. 59 

The government of Mauritania in this instance had requested support from 
France against outside aggression. Although the French Foreign Minister em- 
phasized that France needed to protect its citizens, 60 the safety of foreign na- 
tionals in Mauritania was, at best, a secondary factor in France's actions. 
Almost consistently, France's actions are difficult to justify by exclusive refer- 
ence to the protection-of-nationals-abroad doctrine. 

I. France in Gabon. 1990. 

Riots erupted in Libreville, the Gabonese capital, when opposition support- 
ers accused the government of having killed Joseph Rendjambe, the leader of 
the P.G.P. (Parti gabonais du progres) opposition party, who was found dead on 
22 May 1990. 61 Order also collapsed in Port-Gentil, where 10 foreigners, in- 
cluding seven French nationals who were working at the Elf-Aquitaine oil re- 
finery, were taken hostage for 12 hours on 23 May. 62 On 24 May, France 

103 



Forcible Protection of Nationals Abroad 



deployed approximately 600 Marines from their permanent station near 
Libreville who were there under the terms of a defense and military assistance 
treaty signed by the two countries on 17 August I960. 63 France dispatched an 
additional 200 troops to Gabon, including parachutists based at Calvi, in 
Corsica, and infantrymen based at Nimes. All these acts were in conformity 
with the treaty: 64 which required that the Gabonese government issue a specific 
request before France could deploy its forward-deployed forces, or introduce 
new troops into the country. 65 By 25 May the fighting had largely ceased, and 
on 29 May oil production resumed at the Elf refinery. The threat to French na- 
tionals in Gabon having passed, and on 1 June France withdrew most of its 
forces. 66 

French Minister of Foreign Affairs Roland Dumas stated that the French 
mission in Gabon was solely to protect the nearly 2,500 French nationals living 
in Port-Gentil and to repatriate those who wished to leave. 67 By the end of the 
rescue mission, named Operation Requin, 68 approximately 1,800 French na- 
tionals had been evacuated to Paris. 69 Despite the fact that there may have 
been other reasons for the French action, the evacuation of over two-thirds of 
the French nationals living in Port-Gentil identifies this as being a legitimate 
case of forcible intervention. 70 

J. France and Belgium in Rwanda. 1990. 

On 1 October 1990, several thousand armed soldiers of the Rwandan Patri- 
otic Front invaded Rwanda from Uganda. As the rebels approached Kigali, the 
capital, where they sought to overthrow President Habyarimana, the Rwandan 
government requested military assistance from France and Belgium. 71 Both 
countries responded immediately to the request. On 4 October, Belgium dis- 
patched 540 Belgian paratroops and France dispatched 300 French Foreign Le- 
gion paratroops to Rwanda, 72 where approximately 650 French and 1,600 
Belgian citizens were living. 73 The Rwandan government then specifically 
asked Belgium to help protect the airport in Kigali. After securing it, the 150 
French Foreign Legion troops and 150 Belgian paratroopers 74 evacuated nearly 
1 ,000 European and US nationals. 75 Belgium withdrew its troops on 2 Novem- 
ber 1 990, 76 with France withdrawing its forces a few weeks thereafter. 77 

Belgian Prime Minister Martens subsequently explained before the Com- 
missions on Foreign Affairs and National Defense of the Belgian Parliament 
that the government's concern had been the security of the Belgian citizens in 
Rwanda, which had led to the humanitarian action for their protection and, if 
they chose to leave, evacuation. 78 Although the widespread anarchy in 

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Case Studies of Non~United States Forcible Protection of Nationals Abroad 



Rwanda led to an extended Belgian and French military presence, their initial 
actions, taken at the request of the Rwandan government, certainly qualify as a 
legitimate case of forcible protection. 

K. France in Chad. 1990. 

On 10 November 1990, the Chadian opposition leader Idriss Deby, formerly 
the Commander-in-Chief to the dictatorial president Hissene Habre, rebelled 
against the Habre regime. 79 France, which considered the affair an internal 
Chadian matter, 80 nevertheless proceeded without a request from the Chadian 
government to transfer a company of 150 parachutists on 16 November from 
N'Djamena, the capital, to Abeche, in eastern Chad. These men reinforced the 
350 French troops stationed there and combined they were expected to ensure 
the security of French citizens should Deby's forces approach. 81 They achieved 
this objective. When Abeche fell to the rebels on 29 November, France flew in 
a company of parachutists from Corsica, as well as Foreign Legion troops from 
the Central African Republic, to protect both French nationals and other for- 
eigners in N'Djamena 82 and prepare for their evacuation. 83 By early Decem- 
ber, 84 they had evacuated approximately 1,600 foreigners, including between 
960 and 1,120 French nationals. 85 France made no effort to oppose Deby, who, 
having entered N'Djamena on 1 December, had installed himself as president, 
Habre having fled the country. 86 

Unlike the 1978 and 1979 French actions in Chad (discussed in Sections F 
and G respectively) , in this instance neither followed a request by the Chadian 
government nor was it pursuant to the cooperation accord. It surely can be jus- 
tified under the protection-of-nationals abroad doctrine, however. 

L. France and Belgium in Zaire. 1991. 

Zairian soldiers mutinied in September 1991 when hyperinflation rendered 
their paychecks worthless. 87 Although Europeans were not targets, some of 
them fell victim to random pillaging. France thereupon dispatched 1,200 For- 
eign Legion troops aboard military transport planes on loan from the United 
States; Belgium sent 500 paratroopers. 88 These forces arrived in Brazzaville, in 
the Republic of the Congo, on 23 and 24 September and, after crossing the 
Zaire River, proceeded to Kinshasa, Zaire. 89 

After securing the airport, the forces shuttled French and Belgian nationals 
from Kinshasa to safety in Brazzaville. They then proceeded to Kolwezi, a large 
mining center in the Katanga region 1,500 km southeast of Kinshasa. 90 Their 

105 



Forcible Protection of Nationals Abroad 



mission was to begin the evacuation of the 3,500 French nationals and 3,000 
Belgians in Zaire, 91 of whom 650 and 2,000 respectively lived in Katanga. 92 The 
evacuation of over 9,000 foreign nationals from over 30 European, African and 
Middle Eastern countries was completed on 2 October. 93 This was not a com- 
plete evacuation. Some foreigners chose to remain. 

Violence in Zaire resumed on 22 October when President Mobutu arbi- 
trarily dismissed Prime Minister Tshisekedi, at which point the Belgian, French 
and U.S. authorities strongly recommended a complete evacuation. This was 
done and France withdrew its last soldiers on 3 1 October, with the last Belgian 
troops leaving on 4 November 1991. 94 

According to U.S. Secretary of State James Baker, the foreigners'safety had 
depended on the temporary presence of French and Belgian troops. 95 While 
President Mobutu accused France of seeking to destabilize Zaire, 96 Karl I Bond, 
then the leader of the United Opposition Parties, acknowledged the humani- 
tarian nature of the rescue operations. 97 Like the 1978 operation in Zaire (dis- 
cussed in Section D) the 1991 actions of both France and Belgium in Zaire 
appear to be a legitimate case of forcible protection. 

M. France and Belgium in Zaire. 1993. 

In late January 1993, the Zairian army began an armed mutiny, with several 
foreigners being killed during ensuing riots. 98 In mysterious circumstances re- 
lated to the mutiny, the French Ambassador to Zaire, Philippe Barnard, was 
killed. At the time, 3,000 Belgian and 1,000 French nationals still remained in 
Zaire. Belgian Minister of Foreign Affairs Willy Claes recommended that Bel- 
gians leave the country for Brazzaville, in the Republic of the Congo. The Bel- 
gian government also stated that any decision regarding the evacuation of 
foreign nationals from Zaire would be made in coordination with the other 
member States of the European Community, and that Belgium and France 
would furnish the majority of any troops that might be dispatched. 99 Subse- 
quently, Belgium decided to send 550 troops to Kinshasa. According to Prime 
Minister Jean-Luc Dehaene, the operation was coordinated with France. 100 
Foreign Minister Claes emphasized that the joint action was limited to the 
evacuation of civilians, primarily the 1,500 Belgians living in Kinshasa. 101 

While Zairian Prime Minister Tshisekedi, recently reinstated to office, re- 
quested Belgian military assistance, President Mobutu strongly opposed any 
Belgian presence by deploying air-defense forces to the N'Djili airport in 
Kinshasa to prevent Belgian military planes from landing. Mobutu even put his 
presidential yacht at the disposal of those foreigners seeking evacuation to 

106 



Case Studies of Noti'United States Forcible Protection of Nationals Abroad 



Brazzaville, in an effort to make any Belgian action unnecessary. 102 In any 
event, the Belgian evacuation forces remained in Brazzaville and never crossed 
into Zaire. 

On 29 January, however, France deployed 150 Marine infantry troops from 
their station in Bangui, in the Central African Republic, to Kinshasa via 
Brazzaville. The same day, 12 of these Marines secured the French Embassy 
and evacuated 400 French nationals from Kinshasa. 103 French troops began to 
withdraw on 4 February after Zairian troops loyal to Mobutu had quelled the 
mutiny. Belgian forces left Brazzaville the next day. While the latter never ac- 
tively engaged in any rescue operation, the French did, making their actions 
seem a proper case of forcible protection. Interestingly, the French justified 
their involvment on such grounds. 

N. Multinational Evacuation Operation in Rwanda. 1994. 

Security Council Resolution 872 of 5 October 1993 authorized a 1,000-man 
multinational force to monitor peace between the Rwandan government and 
rebel forces. 104 By early April 1994 the UN contingent included 2,500 troops 
from over 20 countries. 105 When armed bandits threatened to kill any foreigner 
unable to prove that he was not Belgian 106 and the UN peacekeepers suffered 
casualties, including 10 Belgian peacekeepers who were hacked to death by 
Rwandan soldiers, 107 seven Western States organized an operation that began 
on 8 April, with the purpose of evacuating Rwanda's foreign community. 

The number of States involved and the scale of the evacuation effort made 
the multilateral action in Rwanda unique. France sent 460 troops and five 
transport planes, 108 while Belgium sent 750 troops (in addition to the 430 Bel- 
gian troops already participating in the UN operation) 109 and nine airplanes, 
including seven C-130 transport planes and two Boeing 747s. 110 Italy sent 80 
troops and three C-130 transport planes. Germany and Canada each sent one 
transport plane and the Netherlands sent four planes. 111 Additionally, the 
United States kept one ship with 330 Marines on alert off the Kenyan coast and 
also provided two transport planes to assist in the evacuation. 112 By April 15, 
1994 Belgian, French and Italian troops had withdrawn after evacuating over 
3,900 foreigners from Kigali. 113 Although the number of participating States 
distinguishes this rescue operation from other ones considered in this chapter, 
in essence it constituted a legitimate case of collective, albeit not UN, forcible 
protection. 

107 



Forcible Protection of Nationals Abroad 



O. France in the Central African Republic. 1996. 

On 19 May 1996, fighting broke out in Bangui, the capital of the Central Af- 
rican Republic, between government forces and mutineers who were protesting 
a governmental decision to place the armory under the command of the presi- 
dential guard. 114 At the behest of President Felix Patasse, France initially de- 
ployed 800 troops of its 1,400 troops currently stationed in the country to 
Bangui. 115 On 20 May, these forces were supplemented with 550 members of 
the French Foreign Legion and additional French paratroopers stationed in 
Gabon. 116 

The stated mission of the French forces was to protect the 2,500 French na- 
tionals in the country, 1,500 of whom were in Bangui. By 23 May, however, the 
situation had so deteriorated that M. Jacques Godfrain, French Minister of Co- 
operation, announced that the objectives of Operation Almandin II had been 
expanded to include protecting the democratically-elected government of 
President Patasse. 117 French Defense Minister Charles Millon justified this de- 
cision under the defense agreement with Central African Republic. 118 

France received political support o{ its expanded mission from Cameroon, 
Gabon, and Senegal, all of which are former French colonies with democrati- 
cally-elected presidents. 119 In the streets of Bangui, however, French forces 
faced violent protests against their efforts to support President Patasse. Never- 
theless, France eventually employed 2,300 troops to evacuate 3,000 foreigners, 
primarily French but also including US, Japanese, and Lebanese nationals. 120 
Because the French actions were in response to an invitation by the President 
of the Central African Republic and consistent with the defense agreement be- 
tween the two countries, they shed little light on the forcible-protection-of-na- 
tionals-abroad doctrine per se. 

NOTES* 

*The author wishes to acknowledge the research assistance provided by Ms. Eva Rieter, 
LL.M., Class of 1996, and Mr. Michael Coco, Class of 1998, University of Virginia School of 
Law, in the preparation of this Chapter. 

1. The situation in the Congo (Belgian and US rescue operations) and the Israeli raid on 
Entebbe in 1976 are not considered in this Chapter, but are discussed in the Conclusion. Other 
instances that have been mentioned in the literature provide little guidance because protection 
of nationals abroad arguments either were not raised or were not relevant. See, e.g., Loyola, 1976, 
where French citizens, taken hostage in Somalia, were freed when French soldiers responded to 
Somali fire but remained within the territory of Djibouti, then a French colony; Mogadishu, 1977, 
where the Somali government consented to the use of German commando units to rescue 
German citizens taken hostage on a Lufthansa airplane; Lamaca, 1978, where Egypt did not 

108 



Case Studies of Non-United States Forcible Protection of Nationals Abroad 



invoke the protection of nationals rationale to justify its operation in Cyprus to rescue Egyptians 
taken hostage aboard a Cypriot airplane, but simply explained its action as necessary to fight 
terrorism; and Bangkok, 1981, where Thai authorities permitted Indonesian forces to storm an 
Indonesian airplane to rescue civilians taken hostage by terrorists. 

2. See infra text accompanying notes 4-8. 

3. For an instructive account of the political context of the French, Belgian and British 
military presence in Africa, see generally A. Rouvez, Disconsolate Empires (1994). 

4. 558 Pari. Deb., H.C. (5th ser.) 1565 (1956). 

5. Id. at 1566. 

6. Id. 

7. Id. 

8. 11 U.N. SCOR (749th mtg.) at 24, U.N. Doc. S/P.V. 749 (1956). 

9. Higgins, International Law and Civil Conflict, in The International Regulation of Civil 
Wars 169, 175-76 (E. Luard ed. 1972). 

10. 15 U.N. SCOR (873d mtg.) at 34-35, U.N. Doc. S/P.V. 873 (1960). 

11. 15 U.N. SCORSupp. Oan.-Dec.) at 11, U.N. Doc. S/4382 (1960). 

12. 15 U.N. SCOR (877th mtg.) at 18, U.N. Doc. S/P.V. 877 (1960). 

13. Id. at 30. The Belgian representative to the Security Council cited the fact that Belgium 
had only 1,400 troops present in Leopoldville as evidence that Belgian objectives did not extend 
beyond the protection of its nationals, since the number of troops would have been insufficient to 
subdue and control that city's population of 350,000. Id. at 29. 

14. Id. at 30. 

15. S.C. Res. S/4387, 15 U.N. SCORSupp. Gan.-Dec.) at 16, U.N. Doc. S/P.V. 873 (1960). 

16. S.C. Res. S/4405, 15 U.N. SCOR Supp. Gan.-Dec.) at 34-35, U.N. Doc. S/P.V. 879 
(1960). The Secretary-General, reporting on the implementation of these resolutions, referred 
to a letter of the Belgian Foreign Minister that summarized the position of his government 
regarding the legal justification for the intervention: 

Belgian troops were obliged to intervene solely in order to save the lives of 
fellow-countrymen who were in great danger, lacking any of the protection which a 
State must afford to private individuals. 

This intervention implies no interference in the internal affairs of the Congo. It is 
temporary in nature. 

These rescue duties come to an end as soon as United Nations troops arrive in a given 
region to take over and, at the same time, to assume responsibility for the safety of 
individuals. 

Second Report of the Secretary-General on the Implementation of Security Council Resolutions 
S/4387 of 14 July 1960 and S/4405 of 22 July 1960, 15 U.N. SCOR Supp. Gan.-Dec.) at 48, U.N. 
Doc. S/4417 (incorporating Doc. S/4417 Corr.l) (1960). 

17. 15 U.N. SCOR Supp. Gan.-Dec.) at 38-39, U.N. Doc. S/4414 (1960). 

18. S.C. Res. S/4426, 15 U.N. SCOR Supp. Gan.-Dec.) at 92, U.N. Doc. S/P.V. 886 /d 
(1960). 

19. For praise of Belgian efforts in the Congo by the French representative to the UN, see 15 
U.N. SCOR (873d mtg.) at 27-28, U.N. Doc. S/P.V. 873 (1960); for approval by the British 
representative, see id. at 25-27; and, for approval by the Italian representative, see id. at 22-25. 

20. Id. at 28. 

21. Id. at 37 (Soviet representative); id. at 12 (Tunisian representative); id. at 30 (Polish 
representative); and id. at 32 (Argentine representative). 

109 



Forcible Protection of Nationals Abroad 



22. Rouvez, supra note 3, at 167. 

23. Id. 

24. Les otages du Polisario sont liberes: M. Waldheim les reconduit d' Alger a Paris, Le Monde, 
Dec. 24, 1977, at l,col. 6. 

25. 32 U.N. SCOR Supp. (Oct.-Dec.) at 103, U.N. Doc. S/12503 (1977). 

26. Id. 

27. Rouvez, supra note 3, at 167-68. 

28. For a description of the 1964 US-Belgian intervention in the Congo, see Chapter IV, 
Section B. 

29. C. Alibert, Du Droit de se faire justice dans la societe internationale depuis 1945, at 253 
(1983). 

30. Rouvez, supra note 3, at 336. 

31. French President Giscard d'Estaing estimated the composition of the European 
population in Kolwezi to be about 1,700 Belgians, 400 French, 150 Italians, 150 British, 150 
Greeks and a few other foreign nationals. Manin, L 'Intervention frangaise au Shaba, 1978 
Annuaire Franc, ais de Droit International 159, 165. The Belgian Prime Minister Leo Tindemans 
stated that 1,800 Belgians lived in Kolwezi and more than 6,000 in the province of Katanga. 
Salmon &. Vincineau, La pratique du pouvoir executif et le controle des chambres legislatives en 
matiere de droit international (1977—1978), 15 Revue Beige de droit international 433, 633 
(1980), citing A.P., Senat, seance du 22 mai 1978, at 1424,-25 and A.P., Chambre, 22 mai 1978, 
at 2113. Underscoring the purely humanitarian nature of the rescue operation that eventually 
took place, the Belgian Prime Minister also asserted that Belgium would not leave behind 
nationals of other countries who wished to leave Kolwezi. Id. 

32. As in the Congo in 1964, both the French and the Belgians were supported by the 
United States, which furnished logistical assistance and C-141 planes. These US airplanes were 
used for the long-range transport of heavy equipment, such as helicopters and mobile refueling 
units, thereby greatly facilitating French and Belgian evacuation efforts. See Rouvez, supra note 
3, at 338. 

33. Manin, supra note 31, at 171. 

34- Salmon & Vincineau, supra note 31, at 632, quoting A. P. Senat, seance du 22 mai 1978, 
at 1424-25 (author's translation). 

35. See supra text accompanying note 12. 

36. Manin, supra note 31, at 169. 

37. Rouvez, supra note 3, at 336. No figures are available as to the nationalities of the people 
evacuated by the Belgians. 

38. No figures are available as to the number or nationalities of the people evacuated by the 
French. 

39. See, e.g., Secretary of State Genscher: "[T]he [German] federal government has . . . 
expressly, and as one of the first, expressed its thankfulness towards the French and Belgian 
governments for their commitment to the saving of lives." 93. Sitzung, den 1. Juni 1978, 
Verhandlungen des Deutschen Bundestages, 8. Wahlperiode, Stenografische Berichte, Band 
106, Plenarprotokolle 8/87-8/101, 26 Apr.-23 Jun. 1978, at 7320. 

40. Guiringaud, Minister of Foreign Affairs, J.O. Senat, seance du 16 juin 1978, at 1448. 
Article 3 of the Convention of Military Training Between France and Mauritania, signed on 
10 and 27 December 1977, provided that French troops in Mauritania remained under 
French jurisdiction but "could not in any case be associated with the preparation or 
execution of war operations, or with the maintenance of order." J.O. du 6 novembre 1985, at 



110 



Case Studies of Non-United States Forcible Protection of Nationals Abroad 



12,480. This treaty makes no mention of the use of French troops in Mauritania to protect 
French nationals. 

41. For a description of France's strategic interests in Chad and the Cold War context, see 
Rouvez, supra note 3, at 151-64. 

42. J.O. Senat, seance du 19 mai 1978, at 892. 

43. Id. "Cooperant" refers to French military personnel who are stationed in, and provide 
technical assistance to, States with which France has cooperation agreements. Although 
cooperants come from all branches of the French military, the majority are from the Army. 

44. Id. 

45. J.O. Senat, seance du 12 mai 1978, at 817. 

46. Id. 

47. Rouvez, supra note 3, at 154. 

48. J.O. Senat, seance du 16 juin 1978, at 1448. 

49. Id. at 1446. 

50. Id. at 1448. 

51. Id. 

52. Id. 

53. J.O. Assemblee Nationale, 3e seance du 9 novembre 1978, at 7417. 

54. J.O. Senat, seance du 16 juin 1978, at 1448. 

55. J.O. Assemblee Nationale, 3e seance du 9 novembre 1978, at 7417. 

56. Charpentier, Pratique frangaise du droit international, 1979 Annuaire Franc, ais de Droit 
International 905, 908, citing 'Reponse du Ministre des Affaires Etrangeres a Q.E Vivien, no. 
14007,' J.O. Assemblee Nationale, 10 mai 1979, at 3612. 

57. Id. No figures are available as to the number or nationalities of the other foreigners 
evacuated by the French. 

58. Response to question of Mr. Odru, no. 3859, J.O. Assemblee Nationale, seance du 6 
avril 1979, at 2438. 

59. Id. (author's translation). For a discussion of the defense cooperation agreement 
between France and Mauritania, see supra text accompanying note 40. 

60. Response of the Minister of Foreign Affairs to Mr. Vivien, no. 9548, and to Mr. Odru, 
no. 5239, J.O. Assemblee Nationale, seance du 3 mars 1979, at 1380. 

61. Rouvez, supra note 3, at 180. 

62. Gabon: emeutes et pillages a Libreville et a Port-Gentil, Le Monde, May 26, 1990, at 3, 
cols. 1-5. 

63. Renforts franqais au Gabon, Le Monde, May 25, 1990, at 1, col. 6. The Franco-Gabonese 
defense accord had been revised in 1974. Rousseau, Chronique des faits intemationaux, 94 
R.G.D.I.P. 1035, 1071 (1990). 

64. Rousseau, supra note 63. 

65. Deux accords de securite avec Paris, Le Monde, May 26, 1990, at 3, cols. 3-4- 

66. Rouvez, supra note 3, at 181. 

67. Plus des deux tiers des Franqais ont quitte Port-Gentil, Le Monde, May 29, 1990, at 7, cols. 
1-4. 

68. Gueriviere, Mission presque accomplie, Le Monde, June 1, 1990, at 6, cols. 3-6. 

69. Le Monde, supra note 67. 

70. No figures are available as to the nationalities of other foreigners evacuated by the 
French. 

7 1 . Des accrochages entre forces regulieres et rebelles on eu lieu dans la capitale, Kigali, Le Monde, 
Oct. 6, 1990, at 4, cols. 3-6. Rwanda did not have a defense accord with either France or 

111 



Forcible Protection of Nationals Abroad 



Belgium, although approximately 20 Belgian troops were stationed in the country to provide 
logistical assistance. Gueriviere, Legeste "humanitaire" de la Belgique, Le Monde, Oct. 6, 1990, at 

4, col. 3. 

72. Rouvez, supra note 3, at 343. The French Foreign Legion troops were flown to Rwanda 
from their station in Bangui, in the Central African Republic. Des accrochages entre forces 
regulieres et rebelles on eu lieu dans la capitale, Kigali, Le Monde, supra note 71. 

73. Des accrochages entre forces regulieres et rebelles on eu lieu dans la capitale, Kigali, Le Monde, 
supra note 7 1 . 

74. Rousseau, Chronique des faits internationaux, 95 R.G.D. I. P. 439, 479 (1990). 

75. Foreign Missions In African Lands, N.Y. Times, Apr. 11, 1994, at A13, col. 1. No 
breakdown of this figure by nationalities is available. 

76. Vincineau & Ergec, La pratique du pouvoir executif et le controle des chambres legislatives en 
matiere de droit international (1988-1990), 24 Revue Beige de droit international 132, 208 (1991). 

77. Rousseau, Chronique des faits internationaux, 95 R.G.D. I. P. 721,746 (1991). When rebels 
seized part of the city of Ruhengeri near the Ugandan border on 22 June 1991, 100 French 
paratroopers returned to Rwanda to evacuate French nationals and other foreigners. Rouvez, 
supra note 3, at 345. 

78. Vincineau & Ergec, supra note 76, at 207-08, citing A. P., Chambre, 6 octobre 1990, at 
3-4. 

79. Ventre-deux-guerres, Le Monde, Dec. 4, 1990, at 3, cols. 5-6. 

80. Rouvez, supra note 3, at 163. 

81. La France renforce son dispositif'Epervier" au Tchad, Le Monde, Nov. 17, 1990, at 36, col. 4. 

82. Rouvez, supra note 3, at 163. 

83 . 'On a laisse faire Idriss Deby ' reconnait le ministre franqais de la cooperation, Le Monde, Dec. 

5, 1990, at 4, cols. 4-6. 

84. Rouvez, supra note 3, at 163. 

85. Le Monde, supra note 83. No figures are available as to the number or nationalities of the 
people evacuated by the French. 

86. Decembre 1990 dans le monde, Le Monde, Jan. 9, 1991, at 14, cols. 1-4. 

87. Hearing Before the Subcomm. on African Affairs of the Senate Comm. on Foreign 
Relations, 102dCong., IstSess. 2 (1991) (Statement of Herman J. Cohen, Assistant Secretary of 
State for African Affairs) [hereinafter Hearing]. 

88. N.Y. Times, supra note 75. 

89. Le president Mobutu demande aux militaires de rentrer dans les casernes, Agence 
France Presse, Sept. 25, 1991, available in LEXIS, Europe Library, Presse File. 

90. Id. 

91. Rousseau, Chronique des faits internationaux 96 R.G.D.I.P. 369, 403 (1992). 

92. Supra note 89. 

93. Stegic, Un deuxieme franqais tue a Kinshasa, Agence France Presse, Jan. 29, 1993, 
available in LEXIS, Europe Library, Presse File. Specific figures as to the number or nationalities 
of the people evacuated are unavailable for either the French or Belgian rescue operations. 

94. Supra note 89. 

95. Hearing, supra note 87, at 3. 

96. Supra note 93. 

97. Supra note 89. 

98. Supra note 93. 

99. Navarro, La garde presidentielle prend le controle d'une partie de Kinshasa, selon 
Bruxelles, Agence France Presse, Jan. 29, 1993, available in LEXIS, Europe Library, Presse File. 



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Case Studies of Non-United States Forcible Protection of Nationals Abroad 



100. Id. 

101. Id. 

102. Rouvez, supra note 3, at 352. 

103. Id. 

104. 48 U.N. SCOR (3288th mtg.) at 102, U.N. Doc. S/INF/49 (1993). 

105. The number of UN peacekeepers had been increased pursuant to Security Council 
Resolution 893, which was adopted on 6 January 1994. S.C. Res. 893, 49 U.N. SCOR (3326th 
mtg.), U.N. Doc. S/Res/893 (1994). 

106. Most Foreigners out of Rwanda, AP Online, Apr. 15, 1994, available in LEXIS, News 
Library, Arcnws File. 

107. Belgium admits it had more troops in Rwanda, Reuters World Service, Apr. 16, 1994, 
available in LEXIS, News Library, Arcnws File. 

108. Rouvez, supra note 3, at 355. However, the N.Y Times, supra note 75, reported that 
France sent 700 troops to Rwanda to protect foreigners. 

109. Reuters World Service, Apr. 16, 1994, supra note 107. Rwanda, however, only had 
given permission for Belgium to send 400 paratroopers, according to Belgian Colonel Gilbert 
Hertoghe. Id. 

110. Rouvez, supra note 3, at 355. 

111. Id. 

112. Id. 

113. Rwanda Slaughter Continues, AP Online, Apr. 15, 1994, available in LEXIS, News 
Library, Arcnws File. According to a Belgian government source, it was unclear how many 
foreigners chose to remain in Rwanda. Shaw, Most Foreigners out of Rwanda, Rebels threaten 
Foreign Troops, AP WorldStream, Apr. 15, 1996, available in LEXIS, News Library, Arcnws File. 
Figures are unavailable as to the nationality of the evacuees. 

114. Paris says 'necessary measures' taken in Bangui, Reuters World Service, May 19, 1996, 
available in LEXIS, News Library, Crnws File. 

115. These 1,400 French troops were present in the Central African Republic according to 
the terms of a 1960 defense treaty between the two countries. Representing the second largest 
permanent French military presence in Africa, after that in Djibouti, they were not authorized to 
participate in the maintenance of law and order, but were permitted to protect foreign nationals. 
1,400 soldats franqais, Le Monde, May 21, 1996, at 4, cols. 2-3. 

116. France sends more troops to Central African Republic, Deutsche Presse-Agentur, May 
20, 1996, available in LEXIS, News Library, Crnws File. 

117. US, French Troops Protect Westerners Caught in Mutiny, Wash. Post, May 23, 1996, at 
A38, cols. 3-4. President Patasse was elected in 1993 in the Central African Republic's first 
free elections. Mutiny Rocks Africa Republic: US, French Evacuate Capital, Newsday, May 
22, 1996, available in LEXIS, News Library, Crnws File. The Minister of Cooperation stated 
that France had a duty to honor the request for assistance from President Patasse based on the 
defense agreement between the two countries. See Le Monde, supra note 115. This agreement, 
however, like many such agreements between France and its former African colonies, provides 
that the purpose of the French presence in the country is to protect foreign nationals by taking 
positions around sensitive points such as airports, and to assist the Central African Republic 
against external aggression. Id. Nevertheless, Minister of Cooperation Jacques Godfrain 
declared in 1995 that France now "[w]ill intervene [in Africa] each time an elected 
democratic power is overthrown by a coup d'etat if a military cooperation agreement exists." 

113 



Forcible Protection of Nationals Abroad 



French, France's Army Keeps Grip in African Ex-Colonies, N.Y. Times, May 22, 1996, at A3, 
cols. 1-4. 

1 18. M. Millon: 'assurer la libre circulation et la securite,' Agence France Presse, May 20, 
1996, available in LEXIS, Europe Library, Presse File. 

119. Intervention militaire franchise a Bangui: Les expatries quittent le Centrafrique, Le 
Monde, May 24, 1996, at 1, cols. 5-6. 

120. Specific figures as to the number or nationalities of the people evacuated are 
unavailable tor the French rescue operation. 



114 



Appendix I 



A Chronological List of Cases Involving the 

Landing of United States Forces to 

Protect the Lives and Property of 

Nationals Abroad Prior to World War II* 



This Appendix contains a chronological list of pre- World War II cases 
in which the United States landed troops in foreign countries to pro- 
tect the lives and property of its nationals. 1 Inclusion of a case does not nec- 
essarily imply that the exercise of forcible self-help was motivated solely, or 
even primarily, out of concern for US nationals. 2 In many instances there is 
room for disagreement as to what motive predominated, but in all cases in- 
cluded herein the US forces involved afforded some measure of protection 
to US nationals or their property. 

The cases are listed according to the date of the first use of US forces. A 
case is included only where there was an actual physical landing to protect 
nationals who were the subject of, or were threatened by, immediate or po- 
tential danger. Thus, for example, cases involving the landing of troops to 
punish past transgressions, or for the ostensible purpose of protecting na- 
tionals at some remote time in the future, have been omitted. While an ef- 
fort to isolate individual fact situations has been made, there are a good 
number of situations involving multiple landings closely related in time or 
context which, for the sake of convenience, have been treated herein as sin- 
gle episodes. 

The list oi cases is based primarily upon the sources cited following this 
paragraph. Additional sources are noted occasionally under individual 
cases. In those relatively few instances where the authorities are in conflict 

* The author wishes to acknowledge the research assistance provided by George T. Yates, III, 
Esq., Member of the California and New York Bars, in the preparation of this Appendix. 



Forcible Protection of Nationals Abroad 



about the character or details of a particular landing, the majority view gen- 
erally has been followed. In each case, moreover, an attempt has been made 
to provide information as precise as possible about the nature of the threat 
to US nationals, the size of the force landed, the duration of its stay, the 
number of troops, nationals and other persons killed or wounded, and the 
extent of property loss or damage. 

Sources 

1 . Annual Reports of the Secretary of the Navy [hereinafter cited as Annual Report] . 

2. T. Bailey, A Diplomatic History of the American People (7th ed. 1965) [hereinafter 
cited as Bailey]. 

3. S. Bemis, A Diplomatic History of the United States (1936) [hereinafter cited as Bemis]. 

4. J. Clark (U. S. Solicitor of the Department of State), Right to Protect Citizens in 
Foreign Countries by Landing Forces (3d rev. ed. 1934) [hereinafter cited as Clark]. 

5. 1 17 Cong. Rec. S5637-47 (daily ed. April 26, 1971) (remarks of Senator Goldwater). 

6. Department of State Historical Studies Division, Research Project No. 806A: Armed 
Actions Taken by the United States without a Declaration of War 1789-1967 (1967) 
[hereinafter cited as Dep't of State]. 

7. Dictionary of American History (J. Adams ed. 1940) [hereinafter cited as Dictionary] . 

8. H. Ellsworth, One Hundred Eighty Landings of United States Marines 1800-1934 (US 
Marine Corps Historical Section 1934) [hereinafter cited as Ellsworth]. 

9. G. Hackworth, Digest of International Law (1943) [hereinafter cited as Hackworth]. 

10. D. Knox, A History of the United States Navy (1936) [hereinafter cited as Knox]. 

11. Message of the President and Accompanying Documents, Part I, Papers Relating to 
Foreign Affairs, H.R. Exec. Doc. No. 1, 40th Cong., 3d Sess. (1868-69) [hereinafter cited as 
Message and Documents]. 

12. W. Miller &J. Johnstone, A Chronology of the United States Marine Corps 1775-1934 
(US Marine Corps Historical Branch 1965). 

13. J. B. Moore, International Law Digest (1906) [hereinafter cited as Moore]. 

14. M. Offutt, The Protection of Citizens Abroad by the Armed Forces of the United States 
(1928) [hereinafter cited as Offutt]. 

15. C. Paullin, Diplomatic Negotiations of American Naval Officers, 1778-1883 (1912) 
[hereinafter cited as Paullin]. 

16. J. Rogers, World Policing and the Constitution (1945) [hereinafter cited as Rogers]. 

17. R. Rotberg, Haiti: The Politics of Squalor (1971) [hereinafter cited as Rotberg]. 

18. O. Spaulding, The United States Army in War and Peace (1937) [hereinafter cited as 
Spaulding] . 

19. Staff of House Comm. on Foreign Affairs, 91st Cong. 2d Sess., Background 
Information on the Use of United States Armed Forces in Foreign Countries (Comm. Print 1970) 
[hereinafter cited as Background]. 

20. U.N. SCOR Supp. (Apr.-Jun. 1965) at 89, U.N. Doc. S/6331 (1965) (letter from 
Ambassador Stevenson to the President of the Security Council). 



116 



Appendix I 



CaseNo. 1, 1831-1832 — Falkland Islands 

In July and August 1831, Louis Vernet seized three American ships at port in 
the Falkland Islands, while acting as the civilian and military governor of the 
islands under the authority of the Government of Buenos Aires. Late in 
November, Captain Duncan, sailing on the U. S. sloop Lexington, arrived at 
Buenos Aires and notified its American consul of his intention to proceed to 
the Falkland Islands to protect American citizens and commerce. Argentina 
protested claiming that the United States had no right to use the Falklands or 
its surrounding territorial waters. 

Despite the protest, Duncan set sail for the Falklands, upon learning that 
Vernet had plundered the schooner Harriet, arriving off Berkley Sound on 28 
December 1831. The American force remained inactive until 1 January 1832. 
On that day the Lexington proceeded to the port of St. Louis, where a small 
landing force of 17 men went ashore to release the American vessels and their 
crews, and arrest their captors. A reinforcement party landed from two small 
boats a short time later. The two parties took seven prisoners and dispersed the 
other inhabitants. 

Since nearly all the American citizens in the islands wished to leave, Cap- 
tain Duncan agreed to give them passage to Montevideo. He sent a guard of 12 
Marines ashore to protect the Americans and their property while they were 
making preparations to depart. This force returned aboard ship on 2 January 
1832. A smaller force landed daily until 5 January. On 21 January, a party of 
Americans consisting of 20 men, 8 women, and 10 children boarded the 
Lexington, which sailed the same day. 

Upon reaching Montevideo on 7 February 1832, Duncan surrendered the 
prisoners on the condition that the Buenos Aires Government assume respon- 
sibility for their acts. 

Sources: Ellsworth 76; Offutt 20-22; 1 Moore 298-99. 

Case No. 2, 1833 — Argentina 

In October 1833, insurrection broke out in Argentina. Violence was especially 
severe in the area around Buenos Aires. Although the United States had no 
diplomatic officers or consular agents in Buenos Aires, there were some 
American citizens residing in the city. Daniel Gowland, an American 
businessman, informed the commander of an American naval vessel stationed 
in the harbor of the situation's gravity and requested that the Navy provide 
protection for both US citizens and any foreign nationals not then represented 
by naval forces. 

117 



Forcible Protection of Nationals Abroad 



Five days later, on 2 1 October, an American flagship commanded by Com- 
modore M. T. Woolsey arrived at Buenos Aires. Since the United States had 
no political agent on shore, Woolsey immediately sent Commander Isaac 
McKeever to reside in the city so as to keep him informed of developments. 
Until 3 1 October there were only occasional outbursts, but on that date a wide- 
spread disturbance began. Woolsey landed a force of 43 officers, Marines, and 
seamen, putting them under McKeever's command. They remained ashore un- 
til 15 November 1833, when peace was restored to the city. 
Source: Ellsworth 9-10. 

Case No. 3, 1835-1836 — Peru 

The revolution which began in Peru in February 1835 led to American 
intervention by the end of the year. General Salaverry, anxious to gain control 
of the government, induced disturbances to distract attention from his secret 
organization of a revolutionary army. He deposed President Obregoso and 
proclaimed himself Head of State on 25 February 1835. Obregoso proved to be 
more entrenched than Salaverry expected. He was able to reorganize those 
forces which remained loyal to him and then opposed Salaverry. The ensuing 
conflict created deplorable conditions throughout Peru, especially in the 
capital city, Lima, and the chief port, Callao. 

On 6 December 1835, several American citizens in Lima petitioned the US 
charge d'affaires for a landing party to protect them and their property. The 
charge d'affaires did not take any action until 10 December, when he requested 
that a force from the frigate Brandywine be landed at Callao and sent to guard 
the US consulate at Lima; four men landed on the same date. Shortly after 
their arrival, both factions temporarily withdrew from the city, leaving it with- 
out military or civil government for several days. Under these circumstances, 
the charge d'affaires requested that more Marines be sent to protect foreign res- 
idents. On 17 December, the rest of the Marine guard from the Brandywine 
came ashore. Several days later the British and French also made landings. 
These forces prevented a general plunder of the city, especially in the foreign 
quarter — where no houses were disturbed. The American force returned 
aboard ship on 24 January 1836. 

On 31 August 1836, the Brandywine returned to Callao to land one man 
who then proceeded to Lima to guard the American consulate. He remained 
ashore until 2 December 1836. 
Source: Ellsworth 137-38. 



118 



Appendix I 



Case No. 4, 1841— Peru 

In 1841, Lieutenant A. Bigelow, commander of the US schooner Shark, 
intervened between two warring factions in upper Peru to save the lives and 
property of Americans and other foreigners. 

Source: Knox 159. 

Case No. 5, 1852 — Argentina 

Early in 1852, revolution again swept the Republic of Argentina. The US 
charge d'affaires at Buenos Aires, John S. Pendleton, believed that an 
American naval presence was needed urgently. In response to Pendleton's 
communications, Commodore Isaac McKeever marshaled a force of Marines 
and proceeded from Montevideo to Buenos Aires. On 2 February, McKeever, 
the British admiral, the senior naval officers of France, Sardinia, and Sweden, 
and all the accredited diplomats in Buenos Aires met. At the meeting, they 
decided to apply to the local authorities for permission to land such forces as 
the circumstances might require. Permission was not granted. 

On the next day, when it became known that the rebels had won a victory 
over the forces of General Rosas and were marching toward Buenos Aires, 
panic spread throughout the city. Permission to land forces was urged again 
and this time granted. British, French and American forces were stationed as 
guards for various foreign residents and diplomats. Pillagers plundered the city. 
Disorder was widespread. During the transitional period American Marines 
and sailors patrolled the streets, killing four pillagers. This ended the looting. 
By 12 February, with the new provisional government in control and order re- 
stored, the Americans withdrew to their ships. 

Source: Ellsworth 10-13. 

Case No. 6, 1852-1853 — Argentina 

A small disorder arose in Buenos Aires on 11 September 1852. This 
insurrection was not nearly as violent as the one earlier in the year. 3 
Nevertheless, American interests were endangered so on 17 September a 
Marine guard landed to protect the US consulate. This force remained until 
about April 1853. 

Source: Ellsworth 13. 



119 



Forcible Protection of Nationals Abroad 



Case No. 7, 1853 — Nicaragua 

In 1852, a dispute arose between the local government of San Juan del Norte 
(Greytown) and the Accessory Transit Company, an American-owned 
company chartered in Nicaragua, over the title to a piece of property at Puntas 
Arenas. On 8 February 1853, the city council ordered the company off the 
land. Before either side had taken any further action, the America sloop Cyane 
arrived in San Juan on 10 March. An armed force of 24 Marines was sent 
ashore to protect American citizens and their interests. After several days the 
controversy apparently was settled and the landing party was recalled on 13 
March. Shortly thereafter the Cyane sailed north. 
Sources: Clark 58-59; Ellsworth 120; Offutt 32. 

Case No. 8, 1854 — China (Shanghai) 

Commodore Perry visited Shanghai, after his first visit to Japan in 1853. By 7 
September 1853, the Taiping rebellion had become full blown; the city was 
captured by the insurgents and skirmishing near Shanghai was constant. In 
response to these events, Perry left behind the US sloop-of-war Plymouth before 
sailing to Japan in 1854. 

The Imperial Chinese forces were encamped around the city, and their fleet 
was anchored in the river. They committed petty hostilities toward foreigners, 
with the army tearing down structures at construction sites and stealing build- 
ing materials, and the navy firing without warning and searching all boats on 
the river. The general in command of the Imperial troops advised foreigners 
that he was no longer able to protect foreign interests and that they must pro- 
tect themselves. 

On 8 March 1854, a privately owned American pilot boat was fired upon. 
The Imperial forces seized the vessel, hauled down the American flag and mal- 
treated the crew. In response, Commodore Kelly of the Plymouth threatened to 
kill the commanding officer of the Imperial vessel. This threat resulted in the 
release of six prisoners and the return of the American boat. 

The attacks on foreigners continued, however, and by 3 April more affirma- 
tive action was necessary. A small body of British Marines moved on the Impe- 
rialists but was driven back. The British immediately landed another 150 
seamen and Marines, and the Americans landed about 60 the following day. 
These men were joined by about 30 volunteers from American merchant ves- 
sels, as well as volunteers from the foreign quarter of the city. On the same eve- 
ning, the United States sent ashore an additional force of 1 1 men to guard the 
American mission grounds. This combined force succeeded in driving the Im- 
perial troops into their encampments. 

120 



Appendix I 



On 4 April, the British and Americans sent a note to the Imperialists ad- 
vising them that if by 4 P.M. they did not evacuate their encampments in the 
vicinity of the Race Course, the scene of the most recent hostilities, the joint 
forces would be obliged to destroy them. The Chinese ignored the warning 
and the attack began at the appointed hour. The combined forces were victo- 
rious over the Imperialists, who left a number of men dead and wounded in 
their retreat. The American casualties included two killed and four wounded. 
The British lost one man with three others wounded. The bulk of the Ameri- 
can force withdrew; however, two guard forces, 35 men at the American con- 
sulate and 11 at the American mission, remained ashore until 15 June. The 
last of the joint forces patrolling the Race Course area reembarked two days 
later. 

Sources: Clark 57-58; Ellsworth 21-22; Knox 185; Offutt 28-31. 

Case No. 9, 1854 — Nicaragua 

Shortly after the departure of the USS Cyane from Nicaragua in March 1853, 4 
the dispute between the city of San Juan del Norte and the American residents 
flared once again. The local authorities set afire some of the Accessory Transit 
Company buildings on the Puntas Arenas property and stole some of the firm's 
goods. In May 1854, in trying to seize the US minister to Central America, 
Solon Borland, a mob cut his face. The American consul demanded reparation 
for these wrongs, but to no avail. 

The Cyane returned to San Juan on 9 July to force reparations. Still unable 
to obtain any satisfactory response, Commander Hollins, of the Cyane, sent a 
landing party of 18 seamen and Marines ashore on 12 July to seize the arms 
and ammunition of the town and to post a proclamation declaring that the 
town would be bombarded the following day if the demands were not met. 
The Cyane opened fire at 9 A.M. on 13 July. There were three different bom- 
bardments during the day. At 4 P.M., the landing party from 12 July went 
ashore to complete the destruction by fire. The force then withdrew. Al- 
though most of the town was destroyed, no lives were lost because the inhab- 
itants had fled. 

Subsequently Nicaragua asserted claims for the damage incurred during the 
bombardment of Greytown. The following is a portion oi Secretary of State 
Marcy's response to the Nicaraguan minister, dated 2 August 1854: 

If Nicaragua chooses to maintain the position you assume in your note to me, 
that her citizens who incorporated themselves with the community at San 
Juan are still in friendly relations with her and entitled to her protection, then 

121 



Forcible Protection of Nationals Abroad 



she approves by an implication which she is not at liberty to deny [the acts] of 
that political establishment planted on her own soil and becomes responsible 
for the mischiefs it has done to American citizens. It would be a strange 
inconsistency for Nicaragua to regard the organization at San Juan as a 
hostile establishment on her territory and at the same time claim the right to 
clothe with her nationality its members. 

The United States also refused to pay the claims of French citizens growing 
out of the bombardment. 5 

On 4 December 1854, President Pierce communicated the facts of the in- 
cident to the Congress in his annual message. The President, the Congress, 
and the Secretary of the Navy approved Commander Hollins' conduct. In 
fact, he was commended for the prompt and efficient execution of his 
duties. 
Sources: Clark 59; Ellsworth 121-22; Knox 183-84; 2 Moore 414-18. 

Case No. 10, 1854 — China (Ning-Po) 

The United States made another landing in China at Ning-Po in 1854. On 20 
July, two armed boats landed to deliver letters to the American consul and a 
missionary. Believing some disturbance was about to occur at Ning-Po, the 
Americans landed an additional 12 Marines the following day. These forces 
remained ashore for two days, acting as a guard. When it became apparent 
that no disorder was going to take place, they returned to the ship on 23 
July. 

Source: Offutt 31. 

Case No. 11, 1855 — China 

The United States, dissatisfied with the failure of the Chinese authorities to 
provide adequate protection for American citizens in that country, maintained 
naval vessels in the area so that assistance might be rendered when necessary. 
On 8 March 1855, one such vessel put in to Shanghai, where local conditions 
were reported to be chaotic. No landing was made until 19 May, when 41 men 
went ashore to protect the lives and property of American citizens. They 
reembarked two days later. 
Source: Ellsworth 23. 

Case No. 12, 1855 — Uruguay 

An uprising in 1855 brought severe fighting to Montevideo, Uruguay, and on 
25 November 1855, Commander W. F. Lynch of the sloop-of-war Germantown 
landed a force of seamen and Marines to protect the lives and property of 

122 



Appendix I 



American residents. Britain, France, and Spain, who had warships present in 
the harbor, also sent detachments to protect their nationals. Notable was the 
fact that Captain Lynch, an American and the senior naval officer of all the 
foreign forces, assumed the command of a joint column which occupied the 
customshouse without resistance. As the fighting intensified, more Americans 
were called ashore on 27 November, bringing the total to about 100. The 
reinforcements withdrew the same day. 

By 29 November, the Uruguayan Government had succeeded in putting 
down the revolution and the original American landing force reembarked 
the following day. During reembarkation the American commander no- 
ticed that the Uruguayan Government forces were preparing to kill the in- 
surgents, even though the latter had capitulated and had been disarmed. 
The Marines commanded by Lieutenant Nicholson interposed themselves 
between the Government troops and the insurgents, thereby preventing the 
slaughter. 

Subsequently, Lynch received a note from the Uruguayan Government 
thanking him for his action in protecting the customhouse and the lives and 
property of the foreign residents. 
Sources: Ellsworth 160-61; Offutt 36-37. 

Case No. 13, 1856 — Colombia (Panama) 

On 19 September 1856, a disturbance occurred in the Panamanian legislative 
assembly which seemed certain to lead to armed conflict between the two 
political factions. Commodore Mervine, commander of the Pacific Squadron, 
requested that the American consul inform Governor Fabriga that he wished 
to land some men to protect American citizens during the impending conflict. 
The Governor granted the request and Mervine sent ashore 160 men and a 
field gun to occupy the railroad station. 6 The American presence had such a 
dampening effect that the battle never occurred. The American forces 
reembarked on 22 September. 
Source: Offutt 37-38. 

Case No. 14, 1856 — China 

In the autumn of 1856, fighting between the British and the authorities of 
Canton seemed inevitable. Fearing injury to Americans and their property, 
the American consul requested that Commander A. H. Foote of the sloop 
Portsmouth send a force to look after these interests. Foote sent 83 men from 
the Portsmouth who landed at Canton about 23 October. When this first 
force proved inadequate, an additional force of about 67 men was landed 

123 



Forcible Protection of Nationals Abroad 



trom the sloop-of-war Levant around 27 October. On 28 November, a 
supplementary force of 29 Marines was landed from the steam sloop USS San 
Jacinto. This detachment remained ashore only two days. About this time the 
decision was made to withdraw the forces because several Americans had 
participated in a British assault on the Chinese without orders, and the 
United States wished to maintain its neutrality. 

While Foote was arranging the American withdrawal, his boat was fired on 
five times as he passed Chinese installations on the river. On the following 
day, 16 November, the sloop Portsmouth was brought up from Whampoa to 
the nearest fort and the Americans immediately opened fire in retaliation. 
The fighting escalated, and on 20 November, Foote landed 287 men who 
took one fort by assault. When about 3,000 Chinese soldiers attempted to re- 
take the fort, the American forces repulsed them. On the following day, two 
more forts were captured, and on 22 November, the last fort surrendered. 
The landing party returned to their ships that afternoon, but landed again the 
following day to occupy the forts and complete their destruction. This work 
continued until 6 December 1856, when the entire force withdrew. Chinese 
casualties amounted to about 250, while the Americans had 29 men killed or 
wounded. 
Sources: Clark 60-61; Ellsworth 24-27; Knox 186-87; Offutt 38-39. 

Case No. 15, 1858 — Uruguay 

When a revolution broke out in Uruguay in January 1858, the Government of 
Uruguay requested that foreign troops be landed to protect the lives and 
property of foreign residents. Detachments from the frigate USS St. Lawrence 
and sloop-of-war Falmouth landed on 2 January 1858, and joined British naval 
forces in holding the two consulates and the customhouse in Montevideo. The 
American forces showed strict neutrality toward both political factions and 
confined themselves to protecting foreigners. On 27 January, about ten days 
after the revolutionary movement fell apart, the Marines withdrew without 
incident. On the day oi the American withdrawal, an increased British force 
landed. 
Sources: Ellsworth 161; Offutt 39-40; Rogers 103. 

Case No. 16, 1859 — China 

In the summer of 1859, it was reported among the Chinese at Shanghai that 
some coolies had been kidnapped and taken aboard a French merchant vessel. 
These reports led to a general disturbance directed against foreigners. At that 
time the side-wheel steamer USS Mississippi had arrived off Woosung and the 

124 



Appendix I 



American consul and several American merchants requested assistance in 

protecting their lives and property. On 3 1 July, the captain oi the Mississippi 

sent ashore an armed party o(60 Marines to offer protection and restore order. 

Having accomplished their objective, the Americans reembarked on 2 August 

1859. 

Sources: Clark 62; Ellsworth 27-28; Knox 189; Offutt 41. 

Case No. 17, 1860 — Angola (Portuguese West Africa) 
When it appeared that the natives would attack the Portuguese settlement at 
Kisembo, Angola (Portuguese West Africa) , the American residents requested 
assistance from the sloop-of-war USS Marion which was lying in the harbor. On 
1 March 1860, several officers and about 40 seamen and Marines went ashore 
to guard the American factories during the night. The force was withdrawn the 
following day. 

On 3 March, another force of 50 men was landed to protect American inter- 
ests during a battle between the natives and the Portuguese. The natives made 
several attempts to burn the American factories, but the force from the Marion 
prevented them from achieving their objective. The next day, the natives hav- 
ing been defeated, the Americans withdrew. It should be noted that the Ameri- 
cans remained neutral throughout the conflict, their only function being that 
of a guard force. 
Sources: Clark 62; Ellsworth 7; Offutt 41-42. 

Case No. 18, 1860 — Colombia (Panama) 

On 27 September 1860, an insurrection began in the outskirts of Panama City. 
After consulting with the American consul, and at the request of the military 
intendente and the agent of the Panama Railroad, Commander William D. 
Porter of the sloop-of-war USS St. Mary's landed a Marine guard to protect 
railroad traffic and American interests. The necessity of the force was 
demonstrated by the fact that six white inhabitants already had been killed and 
three wounded by stray bullets. The force landed and occupied the railroad 
station without opposition. The Governor of Panama turned over the city to 
the joint occupation of American and British forces the following day. On 29 
September 1860, an additional force of 50 seamen landed to reinforce the 
Marine guard. These forces were not withdrawn until 7 October, when the 
insurrection had come to an end. 
Sources: Clark 62-63; Ellsworth 46; Knox 189; Offutt 42. 



125 



Forcible Protection of Nationals Abroad 



Case No. 19, 1864 — Japan 

In the summer of 1864, Robert H. Pruyn, United States minister to Japan, went 
to Yedo (Tokyo) to negotiate a settlement of American claims for several acts 
of hostility committed by Japan against the United States. A force of 65 seamen 
and Marines from the sloop USS Jamestown was landed on 14 July 1864, to act 
as a guard for Pruyn during the three weeks of negotiations, the Japanese being 
unable to guarantee his safety. According to Pruyn, however, he requested the 
guard not only to insure his safety but also to facilitate his work. 

Source: Offutt 44-45. 

Case No. 20, 1865 — Colombia (Panama) 

Although the revolution which erupted in Panama on 9 March 1865, was 
unanticipated by American officials, it so happened that the USS St. Mary's 
was anchored in the harbor ready to render assistance to protect American 
lives and property. The American consuls who requested that a force be sent 
ashore first sought permission from Vice President Calancha, the acting 
Head of State. Since it was his government that was about to be overthrown, 
he readily granted permission. A detachment of Marines was sent to occupy 
the American consulate overnight. When foreign residents were not the 
object of any violence, the Marines returned to their ship the following 
morning. 

Source: Offutt 48. 

Case No. 21, 1868 —Japan (Hiogo) 

Subsequent to the opening of the ports of Osaka and Hiogo on 1 January 1868, 
Japanese hostility toward foreigners became so noticeable that certain vessels 
of the Asiatic Squadron under the command of Rear Admiral Bell were 
stationed in the area so that they could offer assistance if American interests 
were threatened. 

On 27 January, war broke out between two Japanese factions, one favoring 
greater commercial relations and the other wishing to restrict commerce with 
other nations. The leader of the former faction, the Tycoon, was defeated, and 
on 31 January he sought shelter for the night on board the steam sloop-of-war 
USS Iroquois. 1 On the following day, the foreign ministers were compelled to 
leave Osaka and they went aboard the Iroquois to Hiogo. 

Hiogo also was experiencing trouble at this time. On 4 February, Japanese 
soldiers attacked a group of foreign residents and wounded a crew member of 
the screw sloop-of-war USS Oneida. In order to protect the foreign settlement, 

126 



Appendix I 



the treaty powers present at the time made a joint landing. The American force 

withdrew on 8 February 1868. 

Sources: Clark 64-65; Ellsworth 103-04; Offutt 50-51. 

Case No. 22, 1868 — Uruguay 

Two landings were made at Montevideo, Uruguay, in February 1868. At that 
time two-thirds of the city's 70,000 inhabitants were foreigners. In conjunction 
with the actions of commanders of other foreign squadrons, 8 and at the request 
of Governor Flores, Rear Admiral Davis landed a force oi 50 Marines and 
seamen on 7 February, to protect foreign residents as well as the customhouse 
during a political disturbance. The force withdrew the following day, but 
another force of 50 officers and men had to be landed on 19 February to protect 
foreign residents from the rioting which occurred after the assassination of 
Flores. This force did not reembark until 26 February 1868, when the President 
of the Republic requested their withdrawal. 
Sources: Ellsworth 161-63; Offutt 52. 

Case No. 23, 1868 — Japan (Nagasaki) 

At the request of the American consul in Nagasaki, a small force from the 
sloop-of-war USS Shenandoah landed on 8 February 1868 to protect the 
consulate during demonstrations against foreigners in that city. 

Sources: Ellsworth 104; Offutt 51. 

Case No. 24, 1868 — Japan (Yokohama) (April) 

Antiforeign feeling was so strong in Yokohama that the foreign diplomatic 

officers in the city, representing France, Great Britain, Italy, Prussia, and the 

United States sought protection for the foreign settlement from their 

respective naval vessels then present in the harbor. The commanders of these 

vessels held a conference and decided upon a joint landing, which took place 

on 4 April 1868. The American contribution was a party of 25 Marines from 

the side-wheel gunboat USS Monocacy and the USS Iroquois. Two weeks later 

another detail of Marines reinforced them. The entire Marine guard withdrew 

on 12 May 1868. 

Sources: Ellsworth 104; Offutt 51. 



127 



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Case No. 25, 1868 — Colombia (Panama) 

On 7 April 1868, while local police and Colombian troops were absent from 
Aspinwall (Colon), a crowd gathered in the streets of that city making rioting 
seem probable. An agent of a steamship company requested that the 
commanding officer of the screw gunboat USS Penobscot land a force to 
protect passengers and goods in transit. In compliance with this request, a force 
of two officers and 12 seamen went ashore. They were withdrawn as soon as the 
need for protection had passed. 
Source: Offutt 52. 

Case No. 26, 1868— Japan (Yokohama) (July) 

Attacks on foreigners in Yokohama continued. At a meeting on 8 July 1868, 
the foreign ministers of France, Great Britain, Italy, The Netherlands, Prussia, 
and the United States decided that in view of the city's disturbed state of affairs 
it would be necessary to establish four posts of foreign guards. These guards 
were to assist foreigners who might be attacked or who might request 
assistance, and observe the state of affairs in the foreign settlement. Under no 
circumstances, however, were the guards to interfere with the activities of the 
Japanese, except to defend foreigners. France, Great Britain, The Netherlands, 
and the United States each had the responsibility to maintain one post. The 
number of men furnished by each country was: France 11; Great Britain 16; 
The Netherlands 16; and the United States 21. All these measures were taken 
with the approval of Higashi Kuze Chiujio, the Japanese Minister of Foreign 
Affairs. The American force arrived in Yokohama about 13 July 1868 and 
remained until the danger ceased. 

Sources: Letter from R.B. Van Valkenburgh to Hon. William H. Seward (July 22, 1868), 
reprinted in Message and Documents 780-1; Offutt 52. 

Case No. 27, 1868 — Japan (Niigata) 

The Marine guard of the screw steamer USS Piscataqua went ashore at Niigata 
on about 25 September 1868 to protect the lives of some American citizens 
during local riots. They remained for several days. 

Sources: Letter from R. B. Van. Valkenburgh to Hon. William H. Seward (September 25, 1868), 
reprinted in Message and Documents 823-5; Offutt 52. 



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Case No. 28, 1873 — Colombia (Panama) (May) 

In 1873, at the request of the American consul and several American and other 
foreign residents, American forces landed in Panama to protect American 
citizens and their property during revolutionary disturbances. On 7 May 1873, 
as opposing political factions fought over control of the government, a force of 
100 men with two field guns went ashore to occupy the Panama Railroad 
station. This force's orders restricted its activity to the protection of the 
railroad and its property. When the consul requested that an additional force of 
150 Marines be sent into the city to protect foreign residents, Admiral 
Steedman refused because he lacked consent from the local authorities. The 
next day, having obtained the consent of both contending factions, Steedman 
sent a force of. 100 men into the city to protect the foreigners. This force 
withdrew on 11 May when open hostilities ceased. The detachment at the 
railroad station remained until 22 May 1873. 

Sources: Ellsworth 46-47; Offutt 60-61. 

Case No. 29, 1873 — Colombia (Panama) (September) 

By 24 September 1873, it seemed certain that the same factions which had 
clashed in May would renew hostilities. 9 The Panamanian Governor notified 
the US consul that his government was no longer able to protect the Panama 
Railroad as guaranteed by the 1846 Treaty. 10 Under these circumstances, 
Admiral Almy landed 130 men to occupy the railroad station, reinforcing this 
party with another 60 men during the night. These troops reassured the foreign 
residents and secured safe transit of the isthmus for the passengers, freight, and 
specie carried by four steamship lines, two of which were not American-owned. 
American forces boarded trains as necessary to ensure this vital connection 
between the Atlantic and Pacific Oceans. Hostilities ended on 6 October, and 
two days later all American forces withdrew, save for a detail of 30 men which 
remained to guard the railroad station for several more days. 

Sources: Ellsworth 47-48; Offutt 61-62. 

Case No. 30, 1874 — Hawaii 

A dispute over accession to the throne of the Sandwich Islands led to rioting on 
12 February 1874. In compliance with the request of the Hawaiian Minister of 
Foreign Affairs, Commander Belknap of the screw sloop USS Tuscarora landed 
a force of 150 officers and men. The force's mission was to protect not only the 
interests of American citizens, but also to help restore order. The American 
presence did dispel the disorderly crowds, and the inauguration of King David 

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Forcible Protection of Nationals Abroad 



proceeded without further incident. A portion of the U. S. forces withdrew on 
16 February, and the remaining 33 men left on 20 February 1874. 
Subsequently, the Hawaiian Government extended a resolution of thanks for 
the American effort. This act was unsurprising as many consider King David to 
have owed his throne to the American intervention — Dowager Queen Emma 
having had such strong support that she may well have ascended otherwise. 
Sources: Ellsworth 92; Offutt 62-64. 

Case No. 31, 1876 — Mexico 

General Gonzalez, leader of revolutionary forces, informed the U. S. consul at 
Matamoros, Mexico, that he intended to abandon that city because federal 
forces were approaching. There being no other civil authority, the consul 
requested that a small force from the screw sloop-of-war USS Lackawanna be 
landed to police Matamoros and protect foreign interests until Mexican 
authority could be restored. The force landed on 18 May 1876, and remained 
until after the arrival of the federal forces. 
Sources: Clark 67-68; Offutt 64- 

Case No. 32, Egypt— 1882 

During the summer of 1882, trouble developed between the British and the 
Egyptians, and on 11 July 1882, the British bombarded Alexandria. As great 
fires raged in the city, mobs began looting and destroying what remained of it, 
while the Arabs sought to kill every Christian they could find. Scores of people 
were slaughtered. In an attempt to restore order, the British landed 1,100 men 
on 13 July. 

Either that day or the following day the United States landed 70 Marines, 50 
seamen and 6 officers to protect American interests. A portion of this force 
guarded the US consulate while the remainder, as well as a small detachment 
of Germans which had been landed to protect the German hospital, aided the 
British forces. One of the major tasks was to extinguish the many fires and cap- 
ture the numerous incendiaries who roamed the streets. 

Most of the Americans were recalled on 15 July, the remainder being with- 
drawn on 18 July, save for one detail of Marines that remained ashore until 24 
July. Two of the three American vessels departed from Alexandria on 20 July, 
when the British reported that they had the city completely under control. The 
third vessel did not depart until 29 August. 
Sources: Ellsworth 75; Offutt 65-66. 



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Case No. 33, 1885 — Colombia (Panama) (January) 

Early in 1885 a revolution in Panama threatened transit on the Panama 

Railroad. In January 1885, the President of Colombia announced that his 

provincial government was no longer capable of protecting the railroad 

property. At the request of the general superintendent and the US consul at 

Colon, Commander Clark of the screw gunboat USS Alliance landed 13 

Marines to guard the railroad station on 18 January. They withdrew the 

following morning. 

Sources: Ellsworth 48; Offutt 66-67. 

Case No. 34, 1885 — Colombia (Panama) (March) 

A more serious revolution than the one of January 1885 took place in Panama 
in March of that year. On 16 March 1885, insurgents led by Aizpuru captured 
Panama City, whereupon Colombian troops stationed at Colon marched to 
drive out the revolutionaries. In their absence from Colon, however, another 
revolutionary force under the leadership of Prestan took over that city. It was 
not until 1 April that the Colombian forces returned to Colon and defeated 
Prestan. By this time Aizpuru had reoccupied Panama City and succeeded in 
cutting off rail traffic; he controlled most of the city and the isthmus along the 
railroad line. 

A force o( seamen and Marines arrived in Colon, acting under the orders of 
Admiral Jouett, the commander of the US Atlantic Squadron. The first Ameri- 
can landing force of 17 Marines went ashore 16 March 1885 to protect Ameri- 
can interests after the Colombian forces had departed for Panama City, leaving 
the foreign residents of Colon without adequate protection. Later the same day 
an additional 13 men landed. Then again on 17 and 19 March 1885, more men 
went ashore. 

On 30 March, a group of insurgents at Colon seized the American steamer 
Colon of the Pacific Mail Line. A small force from the wooden steamer USS 
Galena recaptured the ship and returned her to her owners on the same day. 
The following day, 3 1 March, a force of 140 seamen and Marines from the Ga- 
lena landed to guard American property and fight the fires that were spreading 
over much of Colon. Unfortunately, most o{ the town could not be saved. At 
about the same time, a landing party went ashore at Panama City. 

On 10 April 1885, Admiral Jouett sent a force to open the railroad line and 
occupy the cities of Colon and Matachin. The expeditionary force, included 
750 seamen and Marines who had been sent from New York, landed at Colon 
in two sections on 11 and 15 April. As soon as the first section of the expedi- 
tionary force arrived it went to Panama City, and by the following day had 

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Forcible Protection of Nationals Abroad 



restored the trains to service. The second section relieved the forces at Colon, 
while two more companies of Marines under Commander McCalla moved 
from Colon to Panama City. 

When McCalla arrived in Panama City it was occupied by Aizpuru. 
Fearing that a battle between his forces and the national troops would de- 
stroy Panama City, McCalla, on 24 April, ordered up the garrison from Co- 
lon and the reserve battalion of Marines from the squadron to occupy most 
of the city. After arresting Aizpuru, he compelled him to sign an agreement 
that fighting should not take place in Panama City. No fighting ensued, but 
this is likely the result of a conference between the nationalist leaders, 
Aizpuru and Admiral Jouett, on 29 April, where Aizpuru and his forces ca- 
pitulated. As the national authority of Colombia was reestablished, the 
American forces began to withdraw, the last Marines leaving the Isthmus 
on 25 May. 
Sources: Ellsworth 48-51; Offutt 67-70. 

Case No. 35, 1888 — Korea 

Unsettled political conditions in Korea kept American naval vessels in Korean 

territorial waters throughout 1888. One landing was made in June at the 

request of the US Minister to Korea who feared a disturbance in Seoul. A 

detachment of 25 seamen and Marines from the third USS Essex, a wooden 

screw steamer, landed at Chemulpo on 19 June and marched to the capital to 

protect American residents. On 30 June, when the city was again quiet, the 

American force withdrew. 

Sources: Clark 68; Ellsworth 59; Offutt 71. 

Case No. 36, 1888-1889 — Samoa 

In September 1888, there was a revolt in Samoa against the Government of 
Tamasese. Mataafa, leader of the opposition, proclaimed himself King and civil 
war ensued. The subsequent fighting endangered the lives and property of all 
foreign residents, the former especially in jeopardy considering the 
cannibalistic customs of some of the natives. 

By November the situation had become so serious that the US consul re- 
quested that the commander of the gunboat USS Nipsic, which was then in the 
harbor at Apia, land a suitable force of Marines for the protection of American 
citizens and the US consulate. A landing party of 1 1 Marines went ashore on 14 
November 1888, remaining until 20 March 1889. The Germans also made 
landings during the disturbance. 
Sources: Clark 68-69; Ellsworth 146. 

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Case No. 37, 1889 — Hawaii 

There was a revolution in progress in the Hawaiian Islands in 1889. By summer 
the situation had so declined that the American Minister feared for the safety 
of foreign residents and legations. Therefore, the second VSS Adams, a wooden 
screw gunboat, landed a guard of Marines on 30 July 1889, to protect American 
interests. They were stationed at the American legation and returned aboard 
ship the following day. 

Source: Ellsworth 92-93. 

Case No. 38, 1890 — Argentina 

There was a revolution in the area around Buenos Aires in July 1890. A 
small detachment of Marines landed to protect the American consulate and 
the U. S. Minister's residence. They remained ashore until 30 July 1890. 

Source: Ellsworth 13. 

Case No. 39, 1891 — Haiti (Navassa Island) 

For several years the Navassa Phosphate Company, an American firm 
engaged in gathering guano from Navassa Island, suffered from labor 
troubles with its native workers. In the spring of 1891, those troubles 
expanded to threaten American lives. When the commander of the first 
VSS Kearsarge, a screw sloop-of-war, reached the island, he determined 
that the situation demanded prompt action. He landed a detachment of 
Marines on 2 June to protect American lives and property. On 20 June, after 
most of the laborers had returned to work, the Marines returned to their 
ship. 

Sources: Clark 69-70; Ellsworth 119; Offutt 71. 

Case No. 40, 1891— Chile 

In 1891, civil war broke out in Chile between the supporters of President 
Balmaceda and the Congressional party. After the Congressionalists 
captured the city of Valparaiso, they endangered the lives and property of 
foreign residents: even foreign legations and consulates were being treated 
with contempt. The American Minister, Patrick Egan, applied to Admiral 
George Brown for a suitable guard for the American consulate. On 28 
August, Brown sent ashore 30 seamen and 18 Marines from the cruiser VSS 
San Francisco and 36 seamen and 18 Marines from the fourth USS Baltimore 
(C-3) to protect the consulate and its refugees. These forces withdrew two 
days later. 

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Forcible Protection of Nationals Abroad 



Eventually the Congressionalists were victorious. They were also very re- 
sentful of the American intervention because US neutrality during the conflict 
had worked to the advantage of Balmaceda. They were especially irritated that 
the American Minister had given asylum to Balmaceda's supporters. Many in- 
cidents followed, including one in which two Americans were killed and 18 
wounded. Finally, after lengthy negotiations, the governments of Chile and the 
US reached a peaceful settlement of their differences. 

Sources: Annual Report 189 J , at 158-59; Bemis 757-58; Ellsworth 16-20; Knox 326-27; Offutt 72. 

Case No. 41, 1893 — Hawaii 

When Queen Liliuokalani informed her cabinet that she planned to 
promulgate a new autocratic constitution by royal edict, some of her ministers 
informed the prominent American residents of the islands. These Americans 
requested the support of the US Minister, John H. Stevens, and the protection 
of the US Navy. Stevens arranged to have a detachment from the fifth USS 
Boston, a protected cruiser, land at Honolulu on 16 January 1893, for the 
ostensible purpose of protecting American lives and property. Curious to their 
stated purpose, the Americans were not stationed near American property, but 
rather were located where they might most easily intimidate the Queen. 

The American presence served its function and on 17 January, 
Liliuokalani's opponents deposed her and established a provisional govern- 
ment under the presidency of Sanford B. Dole. The provisional government re- 
quested that the United States assume the role of a protectorate over the 
islands. Mr. Stevens complied with the request and raised the American flag on 
1 February. The Boston landed another detachment of Marines that same day, 
increasing the number of American forces in Honolulu to about 150 men. Sub- 
sequently, there was a change of administrations in Washington, with Presi- 
dent Cleveland disavowing the actions of Mr. Stevens. On 1 April 1893, the 
American flag was hauled down and the landing force withdrew. 

Sources: Baily 429-33; Ellsworth 93; Offutt 72-73. 

Case No. 42, 1894 — Brazil 

On 6 September 1893, a large section of the Brazilian navy revolted against the 
Brazilian Government. Initially, the insurgents were quite successful and 
maintained close control over the harbor at Rio de Janeiro. During this period 
Admiral da Gama succeeded Admiral Mello as commander of the insurgent 
naval forces at Rio de Janeiro. Once in power, on 1 December 1893, da Gama 
vainly attempted to blockade the port. Since he was unsuccessful in 

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Appendix I 



maintaining a blockade, da Gama then sought to prevent vessels from going to 
the docks. 

The United States had assembled a powerful squadron at Rio de Janeiro un- 
der the command of Rear Admiral Benham, and on 29 January 1894, one of 
these cruisers, the third USS Detroit (C-10), stood in toward the docks along- 
side several American steamers. The insurgents had forbade American vessels 
from going to the city piers. Benham advised the commanders of the American 
steamers that, since the insurgents lacked the status of belligerents, they were 
ultra vires in interfering with commerce. He announced that he would protect 
those American vessels which wished to go alongside the wharves. With this 
promise, a vessel moved toward the pier. When one of the insurgent gunboats 
suddenly fired at this American merchant vessel, Benham fired a shot which 
struck under the insurgent's bow. This shot was followed by another exchange, 
after which Benham advised the insurgents that he would sink their vessel if 
they fired again. There was no more firing and the American merchantmen un- 
loaded without loss of life or property. Subsequently, the revolt failed. 

Sources: Knox 327; 6 Moore 438-39; Offutt 74-75. 

Case No. 43, 1894 — Nicaragua 

The unsettled political conditions surrounding Jose Santos Zelaya's overthrow 
of President Roberto Sacasa in 1893 presented a further occasion for American 
intervention in Nicaragua. Once the lives and property of all foreigners 
residing in the country were in jeopardy, two American cruisers, the fourth 
USS Columbia (C-12) and the USS Marblehead (C-ll), were stationed in 
Nicaraguan waters to lend aid in case of an emergency. 

Early on the morning of 6 July 1894, the US consul at Bluefields requested 
that a force be landed for the protection of American interests. A detachment 
of Marines from the Marblehead landed the same day, and on 31 July, an addi- 
tional landing party from the Marblehead, the Marine guard and a company of 
seamen from the Columbia, reinforced the original landing party. Both parties 
withdrew on 7 August. 

Source: Ellsworth 122. 

Case No. 44, 1894-1896 — Korea 

Much of the fighting during the Sino-Japanese War took place on the Korean 
peninsula. The USS Baltimore (C-3) was instructed to proceed to Chemulpo, 
the port of Seoul, in order to watch developments and give assurance to 
American missionaries living in the area. On 23 July 1894, the US Minister at 

135 



Forcible Protection of Nationals Abroad 



Seoul sent telegrams requesting an armed guard to protect the legation. A force 
of 55 men landed and arrived in Seoul in two sections on 25 and 26 July. They 
reported that the situation in the capital was critical. The Marine force of 22 
men remained until 26 September, when it was relieved by another 
detachment of 18 Marines. The latter force withdrew on 29 October, and four 
days later on 2 November 1894, the Marine guard of the second USS 
Charleston (C-2) landed. 

Although the war between China and Japan ended in 1895, the legation 
guard remained. The force from the Charleston served until 25 March 1895, 
when a force from the USS Detroit (C-10) relieved them. After the force from 
the Detroit departed on 19 June, there was no guard until 11 October 1895, 
when the Marine guard from the gunboat USS Yorktown (PG-1) landed. On 29 
November, a force of Marines from the first USS Machias (PG-5), a schoo- 
ner-rigged gunboat, landed and the next day the Yorktown force withdrew. The 
Machias force remained ashore until 3 April 1896, when the United States 
ceased to maintain a legation guard at Seoul. 

Sources: Background 53; Ellsworth 59-60; Offutt 75-76. 

Case No. 45, 1894-1895 — China (Newchwang) 

In October 1894, the third USS Petrel (PG-2), a fourth-rate gunboat, was 
dispatched to Newchwang (also known as Yingtze and Yenkow), China, in 
order to protect the city's foreign residents. Special problems arose because the 
city is located on the Liao River, which is closed to navigation from November 
until April by ice floes. Since it was necessary to remain there all winter, they 
beached the vessel and constructed a fortress around it large enough to include 
all the foreign residents. 

It was reported that, although the American force never confronted hostile 
Chinese or the Japanese forces, its presence prevented the outbreak of rioting 
on several occasions, and strengthened the local governor's authority. The 
governor, the foreign consuls, and residents agreed that "Fort Petrel" had given 
them a significant advantage in their efforts to protect life and property. 

The Petrel arrived at Newchwang on 12 November 1894, just as the winter 
freeze was setting in, and it departed with the spring thaw on 24 April 1895. 

Source: Offutt 77-79. 

Case No. 46, 1894-1895 — China (Tientsin) 

A force of 51 Marines left the USS Baltimore (C-3) at Chefoo on 4 December 

1894, and proceeded in the direction of Tientsin. They were to guard the US 

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Appendix I 



legation if rioting should erupt in Tientsin during the Sino-Japanese War. This 
precaution was taken in view of the rioting which had occurred in Peking on 
the approach oi the Japanese army. The force reached the US gunboat 
Monocacy on 6 December, and remained alongside a Tientsin dock until the 
war ended. Germany, Great Britain, Russia, France, Italy and Spain also sent 
similar forces. The American force withdrew on 16 May 1895, six days after 
peace was declared. 

Sources: Ellsworth 30-32; Offutt 76-77. 

Case No. 47, 1895 — Colombia (Panama) 

In March 1895, the US consul at Panama reported that a Mexican known as 
Garcia had landed in Colombia, at the border of Costa Rica, with the intention 
of capturing the town of Bocas del Toro. The second USS Atlanta, a protected 
cruiser, was dispatched from Colon, arriving on 7 March. Having conferred 
with Colombian authorities, Captain Cromwell of the Atlanta determined that 
the national forces had the situation under control and he stood offshore the 
following day. 

Upon his return to the town late on the afternoon of 8 March 1895, Crom- 
well learned that Garcia's attack of the town during the day had met with de- 
feat at the hands of the nationalists. Beaten but not dissuaded, Garcia threaten 
to return and ignite the town that night, leading the American consular agent 
at Bocas del Toro to request that a force be sent ashore for the protection of the 
consular agency and American property. Cromwell sought permission from the 
local governor who failed to respond. Still, Cromwell sent 70 men ashore that 
night to occupy the consulate and an American warehouse. (The governor, 
who was at the consulate when the landing force arrived, expressed his ap- 
proval the following day.) The night passed without incident, and on 9 March, 
with assurance from local authorities that they could handle the problem, the 
force withdrew at noon that day. 

Sources: Ellsworth 51-52; Offutt 79-81. 

Case No. 48, 1896 — Nicaragua 

When Zelaya's first term as President of Nicaragua expired in 1896, he forced 
his reelection, causing a new wave of political unrest. At Corinto, the locus of 
the disorder, the Nicaraguan commandant, after informing the American 
consul that his forces were inadequate to protect foreigners and their property, 
requested that the British and Americans land forces for the protection of their 



137 



Forcible Protection of Nationals Abroad 



nationals. Both countries followed this advice. The American landing party of 
34 Marines and sailors went ashore on 2 May, and there remained until 4 May. 
Source: Ellsworth 122-23. 

Case No. 49, 1898 — Nicaragua 

The fighting between Zelaya and his political opponents continued, and in 
February 1898 there was another landing of American forces for the protection 
of the lives and property of American citizens. A party of 33 seamen and 
Marines went ashore at San Juan del Sur on 7 February. They remained until 
the following day when the commander of the Nicaraguan Government forces 
gave assurances that his forces were capable of protecting the foreign 
community. 
Source: Ellsworth 123. 

Case No. 50, 1898 — Spain (Spanish- American War) 

The Spanish- American War (21 April-10 December 1898) has been cited as a 
prime example of American intervention for humanitarian reasons. Clearly, 
the American people were aroused by reports o{ Spanish acts of inhumanity in 
Cuba. Most poignant were tales of the concentration camps. The camps were a 
response to the Spanish military authorities' conclusion in 1896 that it would 
be impossible to suppress the on-going revolution as long as the rebels received 
the aid of civilians throughout the country. Therefore, they ordered the 
populace placed in camps surrounded with barbed wire fences. Unfortunately, 
proper hygienic precautions were not observed and many thousands died. The 
American press reported numerous incidents of cruel and inhumane 
treatment. The "yellow" press in particular maintained that Spain was waging 
"uncivilized" war. 

In his war message to the Congress on 11 April 1898, President McKinley 
summarized the reasons for US intervention as follows: 

First. In the cause of humanity and to put an end to the barbarities, bloodshed, 
starvation, and horrible miseries now existing there, and which the parties to the 
conflict are either unable or unwilling to stop or mitigate. It is no answer to say 
this is all in another country, belonging to another nation, and is therefore none 
of our business. It is specially our duty, for it is right at our door. 



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Appendix I 



Second. We owe it to our citizens in Cuba to afford them that protection and 
indemnity for life and property which no government there can or will afford, 
and to that end to terminate the conditions that deprive them of legal 
protection. 

Third. The right to intervene may be justified by the very serious injury to the 
commerce, trade, and business of our people, and by the wanton destruction of 
property and devastation of the island. 

Fourth, and which is of the utmost importance. The present condition of affairs 
in Cuba is a constant menace to our peace, and entails upon this Government an 
enormous expense. With such a conflict waged for years in an island so near us 
and with which our people have such trade and business relations; when the lives 
and liberty of our citizens are in constant danger and their property destroyed 
and themselves ruined; where our trading vessels are liable to seizure and are 
seized at our very door by war ships of a foreign nation, the expeditions of 
filibustering that we are powerless to prevent altogether, and the irritating 
questions and entanglements thus arising — all these and others that I need not 
mention, with the resulting strained relations, are a constant menace to our 
peace, and compel us to keep on a semiwar footing with a nation with which we 
are at peace. 

Despite Spain's frantic, last-minute efforts to avoid it, the US Congress 
voted to declare war on 19 April. On 25 April, McKinley signed the resolution 
declaring war to have existed since 21 April 1898. 

Sources: Bailey ch. 31; Message from the President to the Congress, [1898] Foreign Rel. U. S. 750, 
757-58 (1901); 6 Moore 211-36. 

Case No. 51, 1898-1899 — China 

At the end of the Sino-Japanese War, a movement against the "aggressive 
spirit of Western civilization" swept through China. Antiforeign feeling swelled 
so strongly that the diplomatic community in Peking became concerned for the 
safety of foreigners in the country. The US Minister to China requested that a 
force be landed to guard the legation in Peking and the consulate in Tientsin. 
On 4 November 1898, a force of 18 Marines landed and proceeded to Peking. 
Another landing party of 30 Marines went to Tientsin on 12 November. By the 
middle of the following March, conditions had improved significantly, and all 
Marines withdrew on 15 March 1899. 

Source: Ellsworth 32-33. 

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Forcible Protection of Nationals Abroad 



Case No. 52, 1899 — Nicaragua 

On 4 February 1899, a new revolution led by General Juan P. Reyes flared in 
Nicaragua. President Zelaya requested that an American naval ship be sent to 
San Juan del Norte on 9 February. By this time the British consul had cabled his 
government requesting that a vessel be sent to San Juan and Bluefields. 

When the second USS Marietta (PG-15), a schooner-rigged gunboat, ar- 
rived at San Juan del Norte on 12 February 1899, the revolutionaries were al- 
ready in possession of the town. The situation grew tense when Reyes 
attempted to compel foreign merchants to pay custom charges and port dues to 
his agent. Consular agents of the United States, Great Britain, Norway and 
Sweden refused to sanction such payments. At the request of the foreign mer- 
chants, a force of about 17 Marines and sailors from the Marietta and a small 
force from a British vessel landed at San Juan del Norte. The revolution col- 
lapsed within a few days and the force from the Marietta reembarked on 5 
March 1899. 

By the end of March, however, there was again trouble over the payment of 
duties at San Juan and Bluefields. The Zelaya government was attempting to 
collect duties under threat of "action," this time from foreign merchants who 
had already paid duties to the insurgents under protest. Martial law was im- 
posed. The cruiser USS Detroit was sent to Bluefields and soon thereafter a 
peaceful settlement was reached. 

Sources: Clark 72; Ellsworth 123-24; [1899] Foreign Rel. U. S. 554, 560 (1901); Offutt 82-83. 

Case No. 53, 1899 — Samoa 

A disturbance in the Samoan Islands over succession to the throne was the 
basis for American intervention for the protection of the US consulate and 
other American interests in the islands. The struggle was between the son of 
the former king, Malietoa Tanu, favored by the British and Americans, and 
Mataafa, the candidate preferred by the Germans. 

When the fourth USS Philadelphia (C-4) reached Apia, Samoa, on 6 March 
1899, the situation ashore was menacing. Indeed the British already had 
landed a force to protect their consulate. Rear Admiral Albert Kautz, com- 
mander of the Pacific Squadron, landed a force of 25 men from the cruiser Phil- 
adelphia on 13 March to protect the US consulate in view of the Mataafaistas' 
warlike preparations. A force of Marines landed to relieve the seamen the fol- 
lowing day. The group of seamen, increased to 65 men, took over defensive po- 
sitions outside Apia, with smaller parties being stationed inside the town. The 
Mataafa forces attacked on 15 March, and both the Philadelphia and the British 

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cruiser HMS Royalist bombarded the hills behind the town. During the conflict, 
the American vessel boarded numerous refugees. Amidst scattered firing on 23 
March, Malietoa was installed as King. British and American reinforcements 
landed on 24 March, bringing the total of the combined forces to 250 men. 

On 1 April, a joint party of 60 Americans and 62 Britons, accompanied by 
four interpreters, two Mormon missionaries, and about 150 friendly natives, 
reconnoitered the island to plan a breaking up o{ one of Mataafa's camps near 
Vailele. In the engagement that followed, four seamen were killed, two of them 
American and two British. The wounded included two British and five 
American seamen. Subsequently, the British and American forces carried out 
reprisals against the hostile natives. Hostilities ceased on 13 May 1899, and two 
days later the Americans reembarked. 

Sources: Clark 72; Ellsworth 146-49; Knox 369-71; Offutt 83-85. 

Case No. 54, 1900 — China (Boxer Rebellion) 

The Boxer uprising of 1900 was by no means a sudden, unanticipated attack. 
Chinese resentment against foreign encroachment was longstanding, and 
there had been an increasing number of attacks on foreigners nearing the 
century's end. During the winter of 1898-1899, the legations of the European 
nations and the United States were compelled to call upon their respective 
governments for guards. These forces were largely withdrawn by the spring oi 
1899. 

The Boxers were, in fact, only one of several patriotic groups especially re- 
sentful of foreign exploitation. The common goal of such groups was to wipe 
out "the barbarians" and their Christian converts. Eventually, they attracted 
the support of the Dowager Empress and the Imperial Army. Initially they con- 
fined their acts of pillage and murder to missionaries and other foreign resi- 
dents located in outlying provinces, but by 1 June 1900, they were bold enough 
to attack the foreign legations in Peking. 

The situation in Peking was critical. The United States force of 56 Marines 
sent ashore in May, 11 was inadequate. Much larger forces were needed. Be- 
tween 24 June and 24 July 1900, 231 foreigners were killed. For a month all 
communication between Peking and the outside world was severed. The West- 
ern Powers and Japan agreed that the situation demanded a large 
interventionary force. While more than 15,000 American troops were ordered 
to China, only some 5,000 or 6,000 had arrived prior to Peking's capture in Au- 
gust 1900. Other nations also had increased their ranks gradually, so that by 8 



141 



Forcible Protection of Nationals Abroad 



August, a column of more than 1 9,000 12 soldiers began the advance from 
Tientsin 13 to Peking. 

The relief expedition engaged the Chinese in a fierce battle near Peking on 
13 August. On the following day the Allies entered the city and ended the 
siege. Negotiations between the Chinese and foreign representatives lasted for 
more than a year, and on 7 September 1901, the final protocol was signed. The 
withdrawal of foreign troops began ten days later. 

Sources: Bailey 481-82; Bemis 486-87; Ellsworth 33-39; Offutt 85-89; Spaulding 390-92. 

Case No. 55, 1900-1941 — China (Peking) 

In response to the US Legation's request for assistance at Peking after the 
outbreak of the Boxer Rebellion, 14 a force of 56 Marines from the USS Oregon, 
Battleship No. 3, and USS Newark (C-l), a protected cruiser, landed, arriving 
at Peking on 29 May 1900. After the rebellion ended, the United States 
decided to maintain a permanent guard of soldiers at the American legation. 
American officials justified this action under Articles VII and IX of the Boxer 
Protocol of 1901, 15 which had been negotiated after the Boxer Rebellion. The 
size of the guard was increased during times of trouble, as during the Chinese 
revolution which lasted from 11 October 1911 until 5 July 1912. 

On 25 November 1941, President Roosevelt announced that the United 
States would withdraw all American troops from China, including the legation 
guard. However, the outbreak of war with Japan on 7 December 1941, some- 
what delayed the implementation of this order. 

Sources: Ellsworth 38-39; [1941] 5 Foreign Rel V. S. 583, 589 (1956); Offutt 86, 89. 

Case No. 56, 1901 — Colombia (Panama) 

Revolution swept Panama once again in 1901. By November the state of affairs 
was so precarious that the Governor advised Lieutenant Commander McCrea 
of the gunboat USS Machias (PG-S) that his forces could no longer assure the 
safety of Americans and their property or the free transit of the Isthmus. 
Thereupon, McCrea landed a force at Colon to occupy the property of the 
Panama Railroad on 20 November. Two days later another force of 248 men 
landed from the second USS Iowa (BB-4) at Panama City. These forces worked 
with British and French forces which also were present. Troops escorted all 
trains, and contending factions entered into agreements to assure the safety of 
passengers and property on the trains. On 29 November, about 300 American 
seamen and Marines and a detachment from the French cruiser Le Suchet 

142 



Appendix I 



occupied Colon. American forces began to reembark on 2 December, and by 4 
December all of them had withdrawn. 
Sources: Ellsworth 52-53; Offutt 89-92. 

Case No. 57, 1902 — Colombia (Panama) (April) 

During the Panamanian revolution of April 1902, the United States served as a 
neutral intermediary. The United States's services were varied. On 16 April, 
one section of a company of seamen from the USS Machias (PG-5) landed at 
Bocas del Toro to protect American residents and their property. On the night 
of 17 April, the insurgent Liberals and the Colombian Nationalists met on board 
the Machias, at which time all agreed that the Nationalist forces would surrender 
the city to Commander McCrea, who in turn would surrender it to the Liberals. 
Once this agreement was carried out on the 18th, the Americans withdrew to 
their ship, leaving a small guard of Marines to protect American property until 
the Liberals could guarantee its safety. With the arrival of more Nationalist 
troops on 20 April, the situation reversed itself and McCrea transferred the city 
back to the Colombian Nationalist authorities, maintaining the peace until 
they were established. All US forces withdrew on 22 April 1902. 
Sources: Ellsworth 54-55; Offutt 92-93. 

Case No. 58, 1902 — Colombia (Panama) (September) 
Due to the continued activity of the revolutionary forces in Panama during late 
1902 disturbances continued. By September the United States was compelled 
to intervene once again to restore and maintain free transit of the Isthmus. On 

17 September, a detachment of seamen from the second USS Cincinnati (C-7) 
went ashore at Colon, while another force landed at Panama City. Together 
they were able to guard all the trains crossing the Isthmus. Reinforcements 
from the first USS Panther (AD-6), an auxiliary cruiser, and the USS Wisconsin 
(BB-9) landed on 23 and 30 September, respectively. All troops were present to 
protect the lives and property of Americans, and assist in maintaining rail 
traffic. By 12 November, the Nationalist forces having begun to make heavy 
gains over the rebels, the Colombian Government was able to assure the safety 
of American interests. On that date the Americans began to withdraw, and on 

18 November 1902, the last Marine battalion embarked. A peace treaty 
between the opposing political parties was signed on board the battleship 
Wisconsin three days later. 

Sources: Ellsworth 55-56; Offutt 94-96. 



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Forcible Protection of Nationals Abroad 



Case No. 59, 1903 — Honduras 

The political unrest which beset Honduras in 1903 was the result of an effort by 
President Bonilla's political opponents, both within his own country and in 
Nicaragua, to oust his government, or at least discredit it, prior to the 
presidential election. 

During this period of unrest, the United States stationed a squadron of five 
naval vessels in Honduran waters to protect American interests. At the request 
of the American consul at Puerto Cortes, a guard of 13 Marines landed on 23 
March 1903 to guard the U. S. consulate in that city. The guard withdrew on 
30 or 3 1 March. Another detachment of 30 Marines landed at Puerto Cortes to 
guard the steamship wharf on 24 March. They embarked on 26 March. 

Source: Ellsworth 94-95. 

Case No. 60, 1903 — Dominican Republic 

A revolutionary outbreak occurred in the Dominican Republic during March 
and April 1903. The cruiser USS Atlanta was dispatched to Santo Domingo 
City to protect US interests during the insurrection. The vessel arrived on 30 
March, and two days later a party of 29 Marines went ashore. The detachment 
was quartered in the house o( the American consul general. Its presence was 
intended to prevent unnecessary bloodshed. The revolution soon ended and 
the Marines returned to the ship on 21 April 1903. 

Sources: Clark 73; Ellsworth 66; Offutt 96. 

Case No. 61, 1903 — Syria 

Both the Moslem and Christian communities experienced difficulties in Syria 
in September 1903. Two American vessels, the second USS Brooklyn (CA-3), a 
heavy cruiser, and the cruiser USS San Francisco, were in the harbor of Beirut at 
the time. Admiral Cotton of the Brooklyn, believing an uprising likely, prepared 
to land a force to protect the US consulate. The need for the force that Cotton 
contemplated did not arise, but at the request of the American consul a guard 
of Marines and a few sailors did land on 7 September 1903, remaining ashore 
five days. 

Source: Ellsworth 155. 

Case No. 62, 1903-1914 — Panama 

It is unclear whether the United States landed troops in Panama during the 

revolution of 1903 more to protect the lives and property of its citizens, or to 

144 



Appendix I 



encourage the on-going revolution. However, there is no doubt that the 
United States welcomed the change of governments, having had its treaty 
proposal for the construction of a Panamanian canal rejected by the 
Colombian Senate in August 1903. 

By the autumn of 1903, the United States anticipated a revolution. The 
Navy Department instructed its ships to keep in readiness. The revolution 
which began on 3 November was successful. On that day, the rebels cap- 
tured the 500 Colombian troops who landed at Colon and sent them by spe- 
cial train to Panama. The Colombians, so outraged at this use of the 
American-controlled railway to aid the revolutionaries, notified the US 
consul on 4 November that, if the two generals who were in charge of those 
troops were not released by 2 P.M., the Colombians would bombard Colon 
and kill every American citizen in the town. Just prior to the appointed 
hour, 42 men were landed with instructions to occupy a stone building 
owned by the railroad. Many Americans sought refuge there, while others 
boarded two steamers made available for their protection. Although it 
seemed certain that the Colombian troops would attack, their commander, 
Colonel Torres, changed his mind and offered to withdraw his troops if the 
American landing party were reembarked. The Americans consented and 
returned to their ship. 

On the following morning, 5 November, when it was discovered that the 
Colombians had not withdrawn as far as had been promised, the US force again 
went ashore. The American commander protested the breach of the agree- 
ment, asserting the United States's neutrality and stressing that its only inter- 
ests were protecting American citizens and maintaining rail traffic across the 
Isthmus. With effort, officials of the new Panamanian Government convinced 
Torres to withdraw his troops. During his preparations, a second force of 
Marines landed. The first landing party returned to their ship and the newly-ar- 
rived force reembarked the next day, 6 November. 

Marines were stationed on the Isthmus almost continuously from 4 Novem- 
ber 1903 to 21 January 1914 in order to protect American interests, especially 
the construction of the Panama Canal. 

Sources: Background 54; Ellsworth 134-36; Knox 374-76; Offutt 96-99. 

Case No. 63 , 1904 — Dominican Republic 

When revolution erupted in the Dominican Republic in 1904, Commander 
Dillingham of the USS Detroit (C-10) arrived with orders to negotiate a 
peaceful settlement, and to protect Americans and their property. Although 

145 



Forcible Protection of Nationals Abroad 



there is scant proof, it seems that Dillingham also was told to support the 
incumbent regime as much as possible. 

Upon his arrival at Puerto Plata on 2 January, Dillingham discovered that a 
British vessel was already present. Small detachments from both ships went 
ashore to prevent any fighting in the city. After an engagement just outside the 
city ended in defeat for the rebels, they quickly retreated from Puerto Plata. 

On 1 1 February, the American Clyde Line steamer New York, was unloading 
cargo at Santo Domingo when the insurgents fired upon her. Two American 
naval vessels were present. While one of them opened fire on the rebels, de- 
tachments from both ships gave chase. They secured a written pledge from the 
rebels that they would not further molest the New York, after which the Ameri- 
cans returned to their ships. 

It was largely through the presence of the American naval vessels and the of- 
fers of diplomatic offices by the naval commanders that the contending fac- 
tions reached settlement. The peace conference terminating the revolt was 
held on board the Detroit in June. 

Sources: Clark 13-14; Ellsworth 66-69; Knox 376; Offutt 99-100; Annual Report 1904, at 540. 

Case No. 64, 1904-1905 — Korea 

On 5 January 1904, a force of 102 Marines landed in Korea and proceeded to 
Seoul, where they established a guard for the American legation during the 
Russo-Japanese War. The force returned aboard ship 1 1 November 1905, some 
two months after the peace treaty had been signed. 

Source: Ellsworth 60. 

Case No. 65, 1904 — Morocco 

In 1904 the United States intervened upon learning that a bandit, Raisuli, had 
kidnapped Ion Perdicaris, an alleged American citizen and his stepson, a 
British subject, from their villa three miles from Tangier on the evening of 18 
May. Christians residing in the area feared that this event presaged a wave of 
hostilities against them. 

When the American naval squadron, under Rear Admiral French E. 
Chadwick, arrived in Tangier, the Admiral and the American consul general 
met with the Minister of Foreign Affairs for Morocco. Since the situation re- 
mained tense, three or four Marines landed on 30 May to protect the consulate. 
On 22 June, Secretary of State Hay, at the direction of President Roosevelt, 
sent a telegram to the consul advising that the US Government "wants 



146 



Appendix I 



Perdicaris alive or Raisuli dead." Subsequently it was discovered that Roosevelt 
knew that Perdicaris was not an American citizen. 

Raisuli released the hostages upon payment of a ransom. The Marines with- 
drew to their ship on 26 June 1904. 

Sources: Bemis 576; Ellsworth 8; [1904] Foreign Rel V. S. 503 (1905). 

Case No. 66, 1904 — Panama 

In 1904 an insurrectionary movement in Panama posed a threat to Americans 
and their property. On 1 7 November, the force of Marines that was sent to 
Ancon, Panama, occupied several houses, thereby inserting themselves in a 
strategic position should there be serious rioting. Their protection did not 
become necessary because the revolt collapsed, and the Marines withdrew 
without incident on 24 November. 

Source: Offutt 101-02. 

Case No. 67, 1905 — Dominican Republic 

In 1905, while the patrol yacht VSS Scorpion (PY-3) was anchored in the river 
off Santo Domingo, her commander, Lieutenant Commander Hilary P. Jones, 
went ashore alone and unarmed, to quiet the unruly crowd which had 
threatened the life of the Dominican President and the American Minister. 
The crowd acted in response to a false rumor that an armed force of American 
seamen was about to seize the city. 

Source: Knox 376-77. 

Case No. 68, 1906-1909 — Cuba 

Immediately following Thomas Estrade Palma's election as President oi the 
Republic of Cuba in August 1906, his political opponents revolted against his 
government. In this moment of turmoil Palma requested that the United States 
send warships to Havana and Cienfuegos in order to protect the lives and 
property of foreign residents. 16 President Roosevelt sent Secretary of War Taft 
to Cuba. By 29 September, he had established a provisional government under 
the authority of the American President. 

On 13 September, the American charge d'affaires at Havana ordered Amer- 
ican forces to land at Havana and Cienfuegos as rioting seemed imminent and 
he feared that American interests and property might be endangered. The 120 
seamen and Marines who landed at Havana withdrew the next day at the order 
of President Roosevelt. The situation at Cienfuegos being more serious, the 

147 



Forcible Protection of Nationals Abroad 



force landed and there remained, being reinforced on 24 September. Their 
mission was to guard American sugar plantations. These men returned to their 
ships when a larger force arrived on 30 September. 

The Marines remained active throughout the early stage of the crisis. The 
Marine forces serving in Cuba in 1906 numbered 2,892 men. On 1 November 
1906, all the Marines, save for one regiment, withdrew and army troops as- 
sumed their functions. 

The US Army then played the main role in this intervention in Cuba. A 
force of 5,394 men, designated as the Army of Cuba Pacification, was sent to 
Cuba in October 1906. These men patrolled the island and worked with the lo- 
cal authorities. The presence of this force effectively restored the peace. The 
force remained until 23 January 1909. 

Sources: Background 54; Ellsworth 62; 2 Hackworth 327; Knox 377; Offutt 102-03; Spaulding 
401-02. 

Case No. 69, 1907 — Honduras 

American naval vessels were sent to the eastern coast of Central America for 
the protection of American interests when Honduras and Nicaragua went to 
war in 1907. The USS Marietta (PG-15) arrived at Trujillo, Honduras, on 18 
March, and discovered that the town, occupied by Nicaraguan troops, was 
likely to be attacked by the Hondurans at any moment. A force of 10 men from 
the gunboat Marietta went ashore to protect American interests, including the 
consulate. The commanding officer of the Marietta instructed the ensign in 
command of the guard "to extend protection to the citizens of other neutral 
powers if asked to do so by their consular representatives." The Nicaraguan 
general, Estrada, was advised of the detail's assignment and assured of its 
neutrality. 

Another force from the Marietta landed at Ceiba on the same day. On 26 
March, a somewhat larger detachment landed at Puerto Cortes and proceeded 
to San Pedro on 5 April, where the men served as a guard for American inter- 
ests. On 10 April, reinforcements from the USS Paducah (No. 18), were sent to 
Trujillo and Ceiba and a small party landed at Puerto Cortes. Finally, on 18 
April, a body of Marines went to Laguna. 

All of these forces withdrew by 21 May, except for the Marines at Laguna, 
who remained until 23 May. On that date they removed to Cholma, where they 
were stationed for the protection of foreign property until 8 June 1907. 
Sources: Ellsworth 95-96; 2 Hackworth 328; Offutt 103-04. 



148 



Appendix I 



Case No. 70, 1910 — Nicaragua 

The armed revolt led by General Juan J. Estrada against Jose Madriz, President 
of Nicaragua, which began about the time of Madriz's inauguration on 21 
December 1909, alarmed the American residents of Bluefields, and provided 
the basis for American intervention in Nicaragua. 

The Estrada forces controlled Bluefields, where numerous foreigners re- 
sided. The gunboats USS Paducah (No. 18) and USS Dubuque (No. 17) were at 
anchor oii Bluefields during this period of unrest. When the Nicaraguan gun- 
boat Maximo Jeraz arrived at the city on 16 May 1910, the commander of the 
Paducah, W. W. Gilmer, issued a proclamation advising both factions that no 
fighting would be tolerated within Bluefield's city limits. (His objective was to 
safeguard the lives and property of foreign residents and other noncombatants.) 
In pursuit of calm, he further advised both factions that no more than 100 armed 
men would be allowed in Bluefields; the number sufficient to police and preserve 
order. Finally, he warned that the United States would not allow bombardment 
of the city, since such destruction would not serve any military end. 

On 18 May, Gilmer landed a force of 100 men to enforce his decree. He in- 
structed them to use "every effort to maintain peace and order, resorting to 
force only in the case of absolute necessity." This landing party being consid- 
ered inadequate, Gilmer sent the Dubuque to Colon, Panama, on 27 May, to 
embark another 206 Marines. The vessel returned to Bluefields on 30 May, and 
Gilmer landed the newly arrived Marines the following day. All of the forces 
reembarked on 5 June 1910. 

There was one more landing during the 1910 crisis. On 9 August 1910, a force 
of 29 men landed at Bluefields and remained on shore until 4 September 1910. 

Although Gilmer was instructed to maintain US neutrality and is considered 
to have followed orders, the Madriz faction protested bitterly to the United 
States about the American involvement. In Madriz's opinion Gilmer's actions 
at Bluefields clearly helped the Estrada forces to maintain control over the city. 

Sources: Clark 75-77; Ellsworth 124-25; 2 Hackwarth 328; Offutt 104-07. 

Case No. 71 1911 — Honduras 

The United States, Great Britain and Germany made landings in Honduras 
following its revolutionary disturbances that began on 22 July 1910. The 
uprising was so severe that on 3 November, the President of Honduras, Miguel 
Davila, requested American assistance for the protection of foreigners at 
Amapala. In accord with this request, the unarmored protected cruiser USS 

149 



Forcible Protection of Nationals Abroad 



Tacoma (CL-20) and the gunboat USS Marietta (PG15) were dispatched to 
Honduras. 

On 26 January 1911, the Tacoma arrived at Puerto Cortes and landed a force 
of 60 men. By this time, the threat to foreigners had been manifested by the 
death of one American noncombatant during the capture of Ceiba the night 
before. The commander of the Tacoma, learning that the insurgents were 
marching toward Puerto Cortes, and anxious to prevent any fighting within the 
city, issued an order prohibiting hostilities within the city limits. He warned 
both factions that he would forcibly enforce the prohibition. To the com- 
mander of the Government troops which occupied Puerto Cortes, he advised 
that if a superior revolutionary force should appear, the commander was ex- 
pected to surrender the town or wage battle outside. On 28 January, the 
Marietta and the British second-class protected cruiser, HMS Brilliant, arrived 
to enforce these policies. 

The United States was successful in preventing much loss of life and prop- 
erty through the establishment of neutral zones, and the peaceful transfer of 
towns between factions. On 31 January, the Government forces evacuated 
Puerto Cortes, leaving it under the control of the combined (British and Amer- 
ican) forces, who then allowed General Christmas, leader of the revolutionary 
forces, to occupy the town on 1 February. A joint force of 72 American and 
British seamen went by train to San Pedro, where they executed a similar trans- 
fer of San Pedro to the insurgents. Once guards were aboard on all trains in the 
disturbed area, peace was soon restored. It is not clear exactly how long Ameri- 
can forces remained ashore, but it appears that most of them withdrew 1 Febru- 
ary 1911, the day that the Marietta sailed from Puerto Cortes. 

On 28 January 1911, President Davila requested American intervention in 
order to terminate the war. The United States, offering mediation, sent a spe- 
cial commissioner, Thomas C. Dawson, to arrange the terms of a peaceful set- 
tlement. Conferences were held on board the Tacoma, the final agreement 
being reached on 4 March. 
Sources: Aravud Report 191 1, at 99; Clark 77-78; Offutt 107-09. 



150 



Appendix I 



Authors Note 
Incidents Related to the Chinese Revolution of 1911 

and the Establishment of the Chinese Republic: 

Case Nos. 72-84; 87-88; 90-91; 96-97; 100; 106; 

108-111; 113-116; 118-120; 122; 124-126; 

128-130; 132; 134-136; 138-145 

The Chinese revolution of 1911 against the Manchu Dynasty resulted from 
widespread mistrust among the Chinese people of the Central Government 
and a fear that China was about to be divided among foreign powers. More 
specifically, the people were concerned about the Government's strong stand 
with regard to the construction and control of the main railroad lines in the 
provinces, the conclusion of foreign loans, and the refusal of Government 
officials to convene an extra session of the National Assembly to discuss the 
budget and loans. In short, the Government appeared insensitive to popular 
demands. 

Open revolt broke out in September 1911, and by year's end the revolution- 
ary military leaders had established a new government in southern China and 
the Yangzte provinces. The revolutionary government convened a new na- 
tional assembly whose members unanimously elected Dr. Sun Yat-sen Provi- 
sional President of the Republic of China on 29 December 191 1. At the end of 
the year Yuan Shinkai, commander of the Manchu forces, agreed to an armi- 
stice and entered into negotiations with the republican leaders. The emperor 
abdicated on 12 February 1912. Subsequently, Sun Yat-sen resigned the presi- 
dency and Yuan was elected in his place. The Nanking Parliament promul- 
gated a provisional constitution in March 1912, and in April the government 
was transferred to Peking. 

Revolutionary disturbances threatening foreign nationals and their property 
began in 191 1 and continued throughout most of the decade. Outbreaks of vio- 
lence intensified in 1920, and reached a climax in 1927. 
Sources: Dep't of State 7-8; [1912] Foreign. Rel. V. S. 46-48 (1919). 

Case No. 72, 1911 — China (Wuchang) 

On 11 October 1911, the day before the revolutionaries seized Wuchang, a 
landing party of 1 1 armed men, accompanied by the American consul general, 
attempted to go ashore to evacuate some American missionaries. Opposing 
soldiers on the shore, however, initially prevented them from landing. When 
they did land on 11 October, a Chinese rebel officer informed them that 

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Forcible Protection of Nationals Abroad 



neither ingress nor egress would be permitted, but that all foreigners would be 
protected. The force then returned aboard ship. 

Source: Clark 83. 

Case No. 73, 191 1-1912 — China (Peking) 

The disorder of the Chinese revolution of 191 1 caused the US to reinforce the 
guard at its legation in Peking with several companies of Marines from 1 1 
October 1911 until 5 July 1912. On 15 October 1911, the force numbered 127 
men, 10 days later the total was 220. The American Minister at Peking 
requested a further increase, and on 2 December 1911 another 100 men were 
landed, bringing the total to 320. 

Early in 1912 the US became concerned that Peking's railway link with the 
sea might be severed. Therefore, the commanding general of the Philippine Di- 
vision was ordered to dispatch more than 500 men from the Philippines and 
make them available according to the wishes of the American Minister at Pe- 
king. Many of these troops had arrived at Wuhu and Nanking by 21 January. 
On 3 March, the American Minister requested that they be sent to Peking, 
shortly thereafter they arrived. By 6 March, the American Minister had tele- 
graphed for additional troops. 

On 8 March, a company of Marines was dispatched from Taku to Peking to 
relieve the army troops in that city. 1 7 About 1 1 March, after the disturbances 
in Taku had quieted, the remaining company of Marines stationed in that city 
were ordered to Peking to relieve another detachment of troops. 18 This action 
brought the total number of Marines in Peking to about 500. 

Around 27 April, the American force in Peking was reduced by about two 
companies, but this condition did not last long. By 22 May 1912, the American 
Minister at Peking had requested that the former force of 500 men be reestab- 
lished, since general uneasiness prevailed in the city. The next day two compa- 
nies of expeditionary troops were dispatched from Manila to Peking. 

Sources: Clark 84-86; Offua 89. 

Case No. 74, 191 1 — China (Hankow) 

On 13 October 1911, the US charge d'affaires at Peking reported that the 
native population of Hankow had been engulfed by the revolution, the most 
serious outbreak until that time. On the same day a force of 10 men went 
ashore at Hankow to guard the works of the Standard Oil Company. One 
among this number stood guard at the US consulate. 

Sources: Clark 83; [1912] Foreign Re/. U. S. 49 (1919). 

152 



Appendix I 



Case No. 75, 1911 — China (Foochow) 

A landing party went ashore at Foochow on 7 November 191 1, to protect the 

US consulate and the property of American citizens. 

Source: Clark 83. 

Case No. 76, 1911 — China (Nanking) 

On 7 November 191 1, a force of 1 1 unarmed men went ashore at Nanking and 
proceeded to the US consulate; another 30 men remained at the waterfront. 
The entire force withdrew shortly after landing. 

On 16 November 1911, an unarmed guard was stationed at the American 
consulate in Nanking. The guard, whose presence was necessitated by unset- 
tled conditions, remained until the American citizens had been evacuated 
from the city. 

Source: Clark 83. 

Case No. 77, 1911 — China (Woosung) 

Guards were sent to Woosung to protect the American Cable Company's cable 

hut around 7 November 1911. 

Source: Clark 83. 

Case No. 78, 1911 — China (Chinkiang) 

Two American landings occurred at Chinkiang on 9 November 1911. First, the 
USS Decatur (DD-5) landed one section of infantry, and, second, the USS New 
Orleans, a protected cruiser, landed a force for the protection of the US 
consulate and American citizens and their property. 

Source: Clark 83. 

Case No. 79, 191 1 — China (Wuhu) 

Both the gunboat USS Helena and the supply ship USS Supply were at Wuhu 
about 17 November 1911. The Supply landed a force as a precautionary 
measure because, even though there was no disorder, it was reported that there 
were many robbers in the area. Protection was extended to all foreigners. The 
force withdrew on 22 November 1911. 

Source: Clark 84- 



153 



Forcible Protection of Nationals Abroad 



Case No. 80, 191 1-1912 — China (Taku) 

At the request of the American Minister, at Peking, the fourth USS Saratoga 
(CA-2) left Shanghai on 29 November 1911 for Taku, where one company of 
Marines landed for the protection of the Methodist Mission. 

On 4 March 1912, the American Minister telegraphed the Commander of 
the Asiatic Fleet: 

The situation in north China is very grave, practically no government. Mutinous 
troops have been rioting in Peking, Tientsin and elsewhere. Local authorities 
[in] Tientsin 19 have requested foreign powers to police [the] city. Can you send 
a vessel to Taku? 

Two days later the Asiatic Commander reported to the Secretary of the 
Navy that two companies of Marines on board the second USS Cincinnati 
(C-7) and L7.S.S. Abarenda (AC- 13) had been dispatched to Taku. The com- 
pany on board the collier Abarenda remained in Taku until 8 March, when they 
were sent to Peking. By 1 1 March, the Taku disturbances had quieted freeing 
the remaining company of Marines for dispatch to Peking. 20 

Source: Clark 84-85. 

Cose No. 81, 1911 — China (Yochow) 

One officer and 12 armed men landed in the vicinity of Yochow on 4 December 

1911, to escort a group of missionaries to that city. 

Source: Clark 84- 

Case No. 82, 1912 — China (Kiukiang) 

A landing force from the USS Elcano (PG-38) went ashore at Kiukiang on 7 

March 1912, to protect concessions. 

Source: Clark 85. 

Cose No. 83, 1912 — China (Swatow) 

The second USS Monterey (BM-6), a monitor, landed a force at Swatow on 16 
March 1912, to save a woman and some children who were endangered by 
fighting between government and revolutionary forces. The government forces 
allowed the Americans to extract them safely. 

On 3 April 1912, another force of nine men landed at Swatow to guard the 
"Buttemeld & Swire's residence," and the German consulate. 

Source: Clark 86. 

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Appendix I 



Case No. 84, 1912 — China (Nanking) 

The USS Pompey (AF-5), a torpedo boat tender, landed a force of men at 

Nanking on 12 April 1912, to protect American interests. They were 

withdrawn after a short time, even in advance of the order from the 

Commander-in-Chief of the Asiatic Fleet to do so. Their speedy withdrawal 

suggests that the perceived threat to American interests probably never 

materialized. 

Source: Clark 86. 

Case No. 85, 1912 — Cuba 

In May 1912 there was a revolt of blacks in Cuba, organized by the 
"Independientes de Color." The uprising quickly became more serious than the 
Cuban Government wished to admit. When Cuban officials seemed unable to 
control the situation, the United States asserted its right to intervene for the 
maintenance of order, pursuant to Article III of the 1903 Treaty. 21 The 
American Government expressed concern for the safety of the lives and 
property of the large number of US citizens residing in Cuba. 

The disturbances centered in the far eastern part of the island near the US 
Naval Station at Guantanamo Bay, to which the United States had sent about 
2,000 additional men by the end of May. While many of them remained on the 
base, there were several landings during the crisis. Cuban President Jose Miguel 
Gomez requested that there be no landings, even for the protection of Ameri- 
can citizens, because he felt that such action by the United States would tend 
to discredit his government at home and abroad. Nevertheless, four companies 
of Marines were sent into the province of Oriente on 5 June, despite the fact 
that there had not yet been any injury to Americans or their property. Faced 
with the fait accompli, Gomez left the American forces to protect foreign prop- 
erty interests and then withdrew his own troops so that they could be used 
against the rebels. At the request of the British charge d'affaires in Washing- 
ton, the US Department of State requested that "such American protection as 
might be available to American lives and property should likewise be extended 
to British subjects." 

There also were two landings at Nipe Bay, Cuba. On 10 June 1912, a force of 
28 Marines landed there and then traveled by rail to the site of the Span- 
ish-American Iron Works at Woodfred, Cuba, to protect American property. 
Two days later, a similar detachment landed to relieve the first force, which 
then reembarked. This second detachment remained until 14 July. One other 
detachment went ashore on 19 June 1912, at El Cuero, Cuba, where it 

155 



Forcible Protection of Nationals Abroad 



remained until 1 July. Apparently all the American forces on Cuban territory 
withdrew near the middle of July 1912. 

The Cuban Government began to assert its reign in the area by the end of 
June. The gradual withdrawal of the American reinforcements from the United 
States base at Guantanamo Bay was under way by the middle of July, the last of 
them reembarking 5 August 1912. 

Sources: Bailey 499-500; Clark 98-101; Ellsworth 62-63; 2 Hackworth 328-29; Offutt 109-11. 

Case hJo. 86, 1912-1925 — Nicaragua 

The revolt of 1912, one of the most serious in the history of Nicaragua, was led 
by the Minister of War, General Luis Mena, who had obtained control over 
most of the country's military supplies before the uprising. Therefore, the 
rebellion, which actually began 29 July 1912, when Mena attempted to seize 
the capital city, Managua, was especially hard fought. 

As the revolt progressed, widespread fear among foreigners for the safety of 
their lives and property grew. The British consul general asked the US Minister 
to Nicaragua for US assistance in protecting his nationals. Requests for protec- 
tion also came from two American corporations, one of which already had suf- 
fered property losses at the hands of the insurgents. When these facts were 
presented to the Nicaraguan Government, the Minister of Foreign Affairs re- 
plied to the US Minister that his government was fully occupied with the revo- 
lution and would be unable to afford protection to foreigners. He requested 
that the United States land forces to protect the lives and property of its citi- 
zens, and, indeed, to extend protection to all the inhabitants of the country. 

On 3 August 1912, the first American force of 102 men landed at Corinto 
and traveled to Managua to guard the American legation and protect Ameri- 
can interests. As the situation worsened, there were many more landings. 22 By 
the time the last ship arrived on 14 September, 2,350 seamen and Marines were 
ashore in Nicaragua. In the words of the acting Secretary of State, Huntington 
Wilson, the United States intended "to take the necessary measures for an ade- 
quate legation guard at Managua, to keep open communications, and to pro- 
tect American life and property," as well as "to contribute its influence in all 
appropriate ways to the restoration of lawful and orderly government in order 
that Nicaragua may resume its program of reforms unhampered by the vicious 
elements who would restore the methods of Zelaya." Admiral Sutherland re- 
ported that his forces had extended their protection not only to Americans and 
other foreigners, but also to "all reputable Nicaraguans." 



156 



Appendix I 



Apparently, the American presence did help curtail what might have been a 
more lengthy struggle. Most of the fighting ended early in November, and the 
American force had been largely withdrawn by the time that the new president 
was elected on 14 November. Two battalions were withdrawn on 2 1 November 
and the last battalion on 13 January 1913. However, on 9 January 1913, a lega- 
tion guard of 105 men was detailed for duty at Managua. This guard was main- 
tained at the legation until 3 August 1925. 23 

Sources: Clark 119-22; Ellsworth 125-27; 2 Hackworth 331; Offutt 111-17. 

Case No. 87, 1912 — China (Kentucky Island) 

During the four years that he ruled, Yuan was able to delay the further 
disintegration of China. He faced formidable opposition, however. On several 
occasions the United States found it necessary to land forces to protect 
American lives and property. 24 When Yuan died on 6 June 1916, he was 
succeeded by Li Yuan-hung, who was deposed during World War I. 

On 24 August 1912, Admiral Nicholson ordered one company of Marines 
from the submarine tender USS Rainbow (AS- 7) to go ashore on Kentucky Is- 
land to protect American lives and property. They withdrew two days later. 

Source: Ellsworth 40-41. 

Case No. 88, 1912 — China (Camp Nicholson) 

On 26 August 1912, Admiral Nicholson deemed it necessary to land a force of 
Marines at Camp Nicholson for the protection of American lives and property 
during a disturbance. The landing party remained ashore until 30 August. 

Source: Ellsworth 41. 

Case No. 89, 1912 — Turkey 

Rioting broke out in the Turkish capital in the autumn of 1912 as the 
victorious Balkan troops began to push the Turks back to Constantinople. 
These events endangered the lives and property of all Christians. The 
Diplomatic Corps decided to land about 2,500 men and 26 guns to protect 
foreign residents and their interests. Among troops who landed on 18 
November 1912, were detachments from British, French, German, Russian 
and Italian warships. There was also a small detail from the USS Scorpion 
(PY-3), which landed to guard the US legation. According to a communication 
of the Navy Department to the Secretary of State, the men from the Scorpion 
reembarked on 3 December 1912. 

Sources: [1912] Foreign Rel. U. S. 1352, 1353 (1919); Offutt 109 n. 112. 

157 



Forcible Protection of Nationals Abroad 



Case Mo. 90, 1913 — China (Shanghai) 

Civil war in China continued. When the southern forces attacked the arsenal 
at Shanghai on 28 July 1913, the naval forces of several countries, including the 
United States, landed troops for the protection of foreign citizens and their 
property. Vice Admiral Nawa of the Imperial Japanese Navy was the senior 
officer present. By 12 August, most of the members of the landing parties had 
returned to their ships without ever having engaged either southern or 
northern forces. 
Source: Clark 87. 

Case No. 91, 1913 — China (Chapei) 

Fighting between the Chinese and the Indians at Chapei endangered the lives 
and property of foreign residents. After the Chinese drove out the Indian 
police, who were protecting the Indian settlement, the foreign consuls on 29 
July 1913, warned both sides that they would have to cease firing into and over 
the settlements. On the next day, the consuls called forth a force of Marines to 
preserve order in the city. On the same day, the Chinese Minister o{ Foreign 
Affairs expressed his appreciation to the Minister in Pehng, advising him that 
the American presence in Chapei had rendered protection to all the people in 
that locality. The American force withdrew 17 August 1913. 
Source: Clark 86. 

Case No. 92, 1913 — Mexico 

In 1913 Mexico underwent another period of political unrest, accompanied by 
considerable fighting among various factions. The United States had warned 
American citizens to leave the country, but unfortunately not all of them 
followed this advice. The situation became so severe by September that a 
rescue operation was deemed necessary to assist the stragglers who now wished 
to depart. 

On 5 September 1913, the USS Buffalo, an auxiliary cruiser, landed four 
Marines and an American consular agent at Ciaris Estero. These men pro- 
ceeded to the Richardson Construction Company's headquarters in the Yaqui 
Valley to escort to the coast those Americans and foreigners who wished to 
leave. Twelve Americans and 83 others availed themselves of the opportunity. 
The landing party and the refugees returned to the ship two days later. 
Source: Ellsworth 115-16. 



158 



Appendix I 



Case No. 93, 1914 — Haiti Qanuary) 

The United States landed forces in Haiti to protect Americans and their 
property during a period of political unrest that led to the abdication of 
President Oreste on 27 January 1914, as General Zamor came to power. In 
three separate landings on 27-29 January, a total of 120 seamen and Marines 
went ashore at Port-au-Prince to guard the U.S. consulate and protect foreign 
interests. At the same time the French and Germans landed 15 and 35 men, 
respectively. The French force was reinforced on 6 February. All of these 
international forces reembarked on 9 February, the day after General Zamor, 
the successful revolutionary leader, was elected President of Haiti. 

A landing party of Marines from the composite gunboat USS Wheeling 
(PG-14) subsequently went ashore at Port-de-Paix, Haiti, on 16 February, to 
protect American and foreign interests. They remained ashore for six days. 

Theodore, one of the minor rebel leaders who had been defeated, evacuated 
Cap-Ha'itien on 20 February, leaving no force to maintain order in the town. 
At the request of the foreign consuls, who feared looting and widespread disor- 
der, the commander of the Wheeling landed an armed force of 65 men for the 
protection of all foreigners and their property on the same day. On 21 February, 
the landing party returned aboard ship, save for a small guard of Marines who 
remained several days longer at the American consulate. Theodore and Zamor 
continued to fight, the former succeeding to the presidency in October 1914- 
Sources: Clark 111-12; Ellsworth 88; Offutt 117-18; Rotberg ch. IV. 

Case No. 94, 1914 — Haiti (October) 

The Zamor government, which came to power in Haiti in February 1914, found 
itself faced with revolution in October. The revolution began in the northern 
part of the country and quickly spread to the other regions. On 19 October 
1914, the US Minister at Port-au-Prince reported that the commander of the 
cruiser USS Tacoma (CL-20) had landed an armed force of 117 men at 
Cap-Hai'tien for the protection of foreigners and their property. Moreover, 
Zamor and his followers had been given refuge at the US consulate in that city. 
Reinforcements were sent to the city on 24 October, but they were withdrawn 
the same day. A portion of the original force at Cap-Ha'itien, 24 men, returned 
aboard ship on 28 October, the others remaining ashore until 7 November. 

By 29 October, the US Minister reported heavy fighting and looting and re- 
quested that naval vessels be sent for the protection of foreign interests. Ac- 
cordingly, the third USS Hancock (AP-3), with an armed force of 800 Marines, 
was dispatched to the city, arriving there 30 October. The Department of State 



159 



Forcible Protection of Nationals Abroad 



instructed the American Minister to land such Marines from this vessel as were 
necessary to protect life and property. He was informed that the USS Kansas 
(BB-21) had been dispatched to Port-au-Prince, and instructed that upon the 
arrival of that vessel he should make similar dispositions for the protection of 
life and property in Gonaives and Saint-Marc. Apparently, no landings were 
necessary. 

The French Minister at Port-au-Prince gave refuge to some of the cabinet 
members of the fallen government. Fearing a mob attack, he requested that the 
American Minister make arrangements to assist in the defense of the French 
legation should it become necessary. Thus, the American Minister called up a 
detail of signalmen from the transport Hancock and stationed them at the 
French legation on 2 November. Order finally was restored by 6 November. 

Sources: Clark 112; Ellsworth 88-89; [1914] Foreign Rel U.S. 354-57, 386 (1922); Offutt 118. 

Case No. 95, 1915-1934 — Haiti 

President Theodore was ousted by Vilburn Guillaume Sam in March 1915, the 
latter holding office only four months before a new revolution occurred. The 
forces of the revolution proved too strong for Sam and he sought refuge in the 
French legation. This action did not deter his opponents, who forcibly entered 
the legation on 28 July, seized Sam and dragged him into the street where they 
decapitated him. 

On 9 July 1915, prior to Sam's death, the United States had sent ashore a 
landing party from the cruiser USS Washington (CA-11) at Cap-Ha'itien to 
quell a disturbance in that city. While the Washington was en route to 
Port-au-Prince on 27 July, the commander of the vessel received word from the 
American Minister of the serious state of affairs in the capital. The Washington 
arrived at Port-au-Prince on 28 July, after Sam's execution. Two battalions of 
Marines, about 140 men, landed immediately to protect foreigners and their 
property. Admiral Caperton of the Washington found his force insufficient and 
called for reinforcements. Another 100 Marines landed at Port-au-Prince on 
29 July to preserve order and protect legations. On the next day a party of Hai- 
tians attacked the American forces and killed two men. Thereupon, a force of 
500 Marines was dispatched to Haiti, landing at Port-au-Prince in early Au- 
gust. With the addition of two more forces landed on 15 and 31 August, the to- 
tal number ashore amounted to nearly 2,000 Marines. The American forces 
took no offensive action against the Haitians unless provoked. However, there 
were numerous confrontations with the Cacos, or hill bandits, who tried to cut 
off supplies and communications. 

160 



Appendix I 



On 12 August 1914, Haiti elected Dartiguenave its new president. United 

States forces remained in the country to assist in its stabilization. The program 

proved effective and a large portion of the American occupation forces were 

withdrawn in May 1916. American casualties in Haiti, from the time of the first 

landing in 1915 until October 1920, were 13 killed and 28 wounded. A force of 

about 500 Marines remained in Haiti until 15 August 1934, when President 

Franklin Roosevelt ordered their withdrawal. 

Sources: Clark 112-13; Ellsworth 89-91; 2 Hackworth 329-30; Knox 380; Offutt 124-27; Rotberg 
ch. IV 

Case No. 96, 1916 — China (Nanking) 

A landing party of seamen from the USS Quiros (PG-40) , a schooner-rigged 

composite gunboat, went ashore at Nanking on 29 March 1916 to quell a riot 

on the premises of the International Export Company. The seamen returned to 

their ship when the riot was under control. 

Source: Clark 88. 

Case No. 97, 1916 — China (Swatow) 

A few Marines were stationed at the US consulate at Swatow during the night 
of 30 March 1916, to safeguard the chief of police, the Taoyin's family, and the 
assistant salt commissioner of Chacchowfu, all of whom had sought refuge 
there. A few Marines also were sent to the German consulate, the agreed 
meeting place of foreign residents in case of trouble. Although several Chinese 
were killed, the disorders were not as great as had been feared, there being only 
minor looting. The American force withdrew the following day. 
Source: Clark 87-88. 

Case No. 98, 1916 — Dominican Republic 

In 1916 General Desiderio Arias, Dominican Secretary of War, launched a 
rebellion against the government oi President Juan Isidro Jimenez, which 
thrust the Dominican Republic into a state of anarchy. Since an important 
objective of both factions was to gain control over Santo Domingo, much of the 
fighting took place in the capital city. The U.S. legation, being in the direct line 
of fire, was struck by shells several times. Thereupon, the American Minister 
requested that a naval force be sent for the protection of American citizens. 



161 



Forcible Protection of Nationals Abroad 



A force consisting of two companies of Marines (about 280 men) landed at 
Santo Domingo on 5 May 1916. By this time, the rebels had succeeded in im- 
peaching Jimenez and were in control of the capital. There was widespread 
fighting, however, as the President's forces tried to regain the city. Some mem- 
bers of the first landing parties guarded the US legation, while others guarded 
the Haitian legation — where many foreigners had taken refuge. On 6 May, 
the American minister reported that the President's forces had been unable to 
take the city, and that the situation had become so chaotic that the American 
forces were preparing to occupy the capital and disarm the rebels. The United 
States soon landed another seven companies of Marines and the city was occu- 
pied without serious difficulty on 15 May 1916, the rebels having withdrawn to 
the interior to establish a new headquarters at Santiago. 

Having quieted the capital, the Americans made plans for the pacification of 
the interior. Several landing parties of Marines were transferred from Puerto 
Plata and Santo Domingo to Monte Cristi. Another regiment oi Marines from 
the United States landed at Monte Cristi on 2 1 June. Five days later, an expedi- 
tion started toward Santiago. Fortunately, a peaceful settlement was negoti- 
ated before the Marines reached the city, enabling the American force to enter 
Santiago without opposition on 6 July. The peak strength of American occupa- 
tion forces was three regiments, or approximately 3,000 men. 

American occupation forces remained in the Dominican Republic until 1 7 
September 1924. During this time 140 Marines were killed or died from dis- 
ease, accident and other causes. Another 55 men were wounded in action. 

Sources: Clark 109-10; Ellsworth 69-71; 2 Hackworth 331; Knox 380. 

Case No. 99, 1917-1922 — Cuba 

In February 1917, there were disorders in Cuba arising from a dispute over the 
results of the presidential election of 1 November 1916. The Liberals 
maintained that their candidate had won, but the Conservatives, who were in 
power, contested the election and refused to surrender the offices. Rioting 
began on 11 February 1917, resulting in widespread looting and destruction of 
property, most American-owned. There was evidence of organized revolution 
in Camagiiey and Santa Clara provinces. 

From 12 February onward there were numerous landings in Cuba by Ameri- 
can forces. 25 Most of the fighting had subsided by 20 May, the date of the inau- 
guration. While the majority of the American forces had withdrawn by 24 May, 
on 4 June there were about 600 Marines and sailors in Cuba. The number was 
high because three additional regiments had landed after 24 May. On 28 

162 



Appendix I 



August, the remaining forces withdrew with the exception of 220 men at 
Camagiiey and 120 men at the US Naval Station at Guantanamo Bay. The 
force at Camagiiey withdrew on 15 February 1922. 

Sources: Clark 101-07; Ellsworth 63-64; 2 Hackworth 330; Offutt 133-37. 

Case No. 100, 1917 — China (Chungking) 

A landing party from an American gunboat went ashore at Chungking on 3 

December 1917, to guard the US consulate during a period of political unrest. 

The guard remained for two days and two nights. British and Japanese guards 

also landed at the same time to guard their respective consulates during the 

crisis. 

Source: 2 Hackworth 332. 

Case No. 10 1, 1918 — Soviet Union 

The Russian revolution of 1917 eventually brought turmoil to all parts of the 
Russian Empire. The effects of the overthrow of the Czarist Government by the 
Bolsheviks spread to the far eastern part of the country including Vladivostok, 
where the almost constant fighting between the Czech and Bolshevik forces 
exposed the foreign residents of Vladivostok to considerable danger. 26 

On 29 June 1918, the Czechs occupied the city and assumed complete con- 
trol, arresting members of the Red Guard, Austrians and Germans. On the 
same day, the United States established a guard of 32 Marines at the American 
consulate. Britain and China also landed forces. Conditions in the city re- 
mained unstable, and on 6 July representatives of Japan, Great Britain, China, 
France and the Czechoslovak Army issued a proclamation stating that, while 
the authority of the Czechs still would be recognized, the Allied Forces assem- 
bled intended to take measures to defend the city against all dangers, both in- 
ternal and external. The American consulate guard remained until 10 August 
1918. 

Sources: Ellsworth 141-42; 2 G. Kennan, Soviet- American Relations, 1917-1920, atch. VI (1958). 

Case No. 102, 1918-1920 — Soviet Union 

In August 1918, the United States landed about 7,000 men at Vladivostok to 
assist in the city's occupation. Their mission was to enforce the proclamation of 
6 July 1918, 27 and maintain order in Vladivostok. This force remained until 
January 1920. 

Source: Background 55. 

163 



Forcible Protection of Nationals Abroad 



Case No. 103, 1919 — Soviet Union 

A landing party of 32 Marines from the USS New Orleans, a protected cruiser, 
went ashore at Tyntuke Bay, near Vladivostok, on 30 July 1919, to protect 
American interests during new disturbances. This force returned aboard ship 1 
August 1919. 

Source: Ellsworth 142. 

Case No. 104, 1919 — Honduras 

During August and September 1919, there was much political unrest in 
Honduras and revolution loomed. On 8 September, a landing force from the 
USS Cleveland (C-19) went ashore at Puerto Cortes to protect the lives and 
property of Americans and other foreign residents. They cooperated with the 
forces oi Honduras in maintaining order in a neutral zone, designated by the 
Military Commander of Puerto Cortes, which the armed forces of both factions 
were forbidden to enter. The revolutionary forces captured the towns of Puerto 
Cortes, La Curva and La Laguna on 11 September. There was no further 
fighting or disorder and the Americans began to return to their ship. The 
remainder of the force withdrew on 12 September 1919. Both factions agreed 
to a truce, and free elections were held in October. General Lopez Gutierrez, 
the revolutionary leader, was elected President with more than 75 percent of 
the votes. 

Sources: Clark 114; [1919] 2 Foreign Rel U. S. 377-95 (1934). 

Case No. 105, 1920-1922 — Soviet Union 

The United States landed a force of 18 Marines on 16 February 1920, to guard 
the American radio station on Russian Island in the Bay of Vladivostok. A 
guard similar to this one was maintained until 19 November 1922. 

Source: Ellsworth 143. 

Case No. 106, 1920 — China (Kiukiang) 

On 14 March 1920, the commanding officers of the gunboats USS Elcano 
(PG-38) and Samar (PG-41), having consulted with the British consul, landed 
a force to quell a local riot at Kiukiang and protect lives. The force remained 
ashore about two hours. 

Sources: Clark 88; 2 Hackworth 332. 



164 



Appendix I 



Case No. 107, 1920 — Guatemala 

Civil war between the Government and Unionist forces caused the United 
States to intervene in Guatemala in 1920. Fearing a bombardment of 
Guatemala City and concerned about the threat both to the foreign legations 
and US property, the US Minister, on 9 April 1920, requested that the 
commander of the gunboat USS Tacoma (PG-32) (ex-CL-20) send a guard for 
the legation. On the same day the Tacoma landed a force of 40 men 
supplemented by an additional force of 50 men from the sixth USS Niagara 
(SP-136), an armed patrol yacht. The forces arrived at Guatemala City on 10 
April. Both warring factions approved of the American presence. On 13 April, 
the Tacoma landed another force of 13 men at the request of the American 
consular agent to guard the cable station. This guard reembarked the next day. 
On 20 and 21 April, the United States withdrew 29 sailors, the others 
remaining ashore until 27 April 1920. Two naval vessels were stationed in 
Guatemalan waters for several days thereafter. 

Sources: Clark 111; 2 Hackworth 331. 

Case No. 108, 1920 — China (Lakeside) 

The USS Quiros (PG-40) landed a force to guard the property of the American 
Mission at Lakeside, apparently church-owned property, on 25 June 1920. One 
American missionary was killed and property valued at about $1,500 was 
looted and destroyed. The force returned aboard ship two days later. 

Source: Clark 89. 

Case No. 109, 1920 — China (Wuchow) 

The Kwantung forces attack of Wuchow in June 1920 endangered the lives of 
foreign residents. To protect them a force of six men landed on 26 June 1920. 
The men escorted the wife and child of Dr. Levell and three nurses, all of whom 
were associated with the Wuchow People's Mission Hospital, to a place of 
safety. Most of, if not all, of these five people were American citizens. 

Source: Clark 89. 

Case No. 1 10, 1920 — China (Yochow) 

On 30 June 1920, the patrol commander of the first line destroyer USS Upshur 
(DD-144) reported his landing of a force to guard the American Mission 
Compound at Yochow. The mission was church-owned property. 

Source: Clark 89. 

165 



Forcible Protection of Nationals Abroad 



Case No. 1 1 I, 1920 — China (Tungchow) 

At the request of the American Mission at Tungchow, a force of 12 Marines 

landed on 20 August 1920 to guard the mission for a few days. 

Sources: Clark 89; 2 Hackworth 332. 

Case No. 112, 1922 — Nicaragua 

In early 1922 political conditions in Nicaragua became unsettled, and the US 
legation at Managua required an increase in the Marine guard to counter 
anticipated disturbances. On 25 January 1922, a landing party of 31 Marines 
went ashore. A second party of 53 men reinforced the first group on 29 January. 
An additional force of 47 Marines landed on 8 February and proceeded to 
Managua. Apparently the situation improved because all but 40 of the 131 men 
returned aboard ship on 1 1 February. 

A revolt actually broke out in May 1922. The legation guard played an im- 
portant role in preventing loss of life as the rebels had contemplated destruc- 
tion of Managua. The United States offered its good offices, enabling the rival 
parties to reach a peaceful settlement without bloodshed. 

Source: Ellsworth 128. 

Case No. 113, 1922 — China (Peking) 

A new phase of the civil war in northern China began on 28 April 1922, when 
fighting commenced near Machang between the Chang Tso-lin and Chihli forces. 
The fighting ended in June with the restoration of Li Yuan-hung to the presidency. 2 

At the commencement of the fighting, there were about 800 Americans living 
in and around Peking outside the legation quarter. Anticipating danger to Ameri- 
can citizens and their property, a force of 156 seamen and Marines from the second 
USS Albany (CL-23) landed at Chinwangtao on 27 April 1922. When they arrived 
in Peking the following day, they were added to the legation guard, bringing its 
strength to more than 500 men. The force remained until 25 May 1922. 

Sources: Clark 89; Ellsworth 41; [1922] 1 Foreign Rel. V. S. 681, 694-96 (1938). 

Case No. 114, 1922 — China (Shanghai) 

On 5 May 1922, a battalion of Marines commanded by Captain Roy C. Swink 
landed from the USS Huron (CA-9) at Taku and proceeded to Shanghai to 
protect American interests. They remained there until 11 May 1922. 

Source: Ellsworth 41. 

166 



Appendix I 



Case No. 115, 1922 — China (Tientsin) 

The American Minister at Peking received reports on 4 May 1922, that the 
Chihli forces had won victories at Kuan and Machang and were within 20 miles 
of Tientsin. Fearing possible violence in the city, Admiral Strauss of the USS 
Huron landed about 150 Marines armed with machine guns at Tientsin the 
following day. The force withdrew on 15 May 1922. 

Source: [1922] 1 ForeignRel. V. S. 698-99, 705 (1938). 

Case No. 1 16, 1922 — China (Tungchow) 

Fearing possible violence from retreating Fengtien forces, the American 
Minister at Peking sent a detachment of Marines to Tungchow on 5 May 1922. 
Their mission was to protect American citizens and their property. 

Sources: Clark 89; 2 Hackworth 332. 

Case No. 1 17, 1922 — Smyrna (Izmir, Turkey) 

During the war between Turkey and Greece in 1922, the United States found it 
necessary to intervene for the protection of American lives and property, 
including the consulate, at Smyrna. As the Turkish forces advanced and the 
Greeks withdrew, much of the city was burned and the US consulate was 
destroyed. A total of four naval vessels were dispatched to Smyrna and made 
landings. In three landings from three different vessels on 7, 8 and 9 September 
1922, about 55 men went ashore. Both the Greek and Turkish authorities 
consented to the landings. The men withdrew in three groups on 13, 14 and 16 
September. A fourth vessel landed a guard for the American consulate on 16 
September. These men reembarked on 2 October, their ship departing Smyrna 
on 21 October 1922. 

Sources: Background 56; Clark 129-30; 2 Hackworth 333. 

Case No. 1 18, 1922 — China (Foochow) 

The American consul at Foochow requested a landing force on 4 October 
1922, when a threat of military invasion by the southern forces arose. A landing 
party of 48 men from the light minelayer VSS Rizal (DM- 14) went ashore the 
next morning. Later the same day, they were joined by about an equal number 
of British and Japanese troops. The force withdrew within a few days. 

On 1 1 October 1922, a force of 30 men and 2 officers from the Rizal again 
landed at Foochow after the city was captured by the southern forces. Admiral 
Anderson held a conference with fleet officers and local American 



167 



Forcible Protection of Nationals Abroad 



representatives and together they formulated a joint plan for the protection of 
American nationals in Foochow and Nantai. According to a report of the 
American consul, u [t]his plan provided for the stationing of a force of 30 
Marines at the consulate, with the forces of the naval vessel in port at Pagoda as 
a reserve; and for the concentration of all Americans, in case of danger, at 
three concentration centers on Nantai Island, where they would receive 
military protection." 

Source: Clark 89-90. 

Case No. 1 19, 1923 — China (Masu Island) 

A party of four Marines from the first USS Asheville (PG-21) landed at Masii 
Island on 14 February 1923, to protect Americans who were threatened by 
bandits. The force withdrew 19 February 1923. 

Source: Clark 90. 

Case No. 120, 1923 — China (Tungshan) 

On 15 November 1923, a detachment of eight Marines went to Tungshan, a 
suburb of Canton, to protect American missionaries during fighting between 
Chinese forces. The guard withdrew after several days. 

Source: 2 Hackworth 332. 

Case No. 121, 1924 — Honduras 

A contest for the presidency of Honduras in 1924 brought much political 
unrest to that country. Fearing an outbreak of violence, the United States 
dispatched several vessels, one of which landed a small force at Amapala. The 
force traveled to Tegucigalpa, the capital, to protect the American legation. 

There were numerous landings in February and March. Fearing that the in- 
surgents would attack the town of La Ceiba, the United States landed a force of 
59 men on 28 February, to protect the American consulate. This force declared 
the compound of the Standard Fruit and Steamship Company neutral ground 
and gave refuge there to Americans and other foreigners. Both of the contend- 
ing factions were notified of this action and advised that the United States in- 
tended to remain neutral in the conflict. 

On 29 February, a force of 35 men from the USS Denver (C-14) landed at La 
Ceiba, remaining ashore until 3 March. A combined force of 41 men from two 
vessels was landed at Tela and established a neutral zone on 3 March. These 
men returned to their ships on 7 March. 

168 



Appendix I 



At the request of the American consul at Puerto Cortes, who reported that 
the situation was critical, the Denver landed a force of 167 men at Puerto 
Cortes on 4 March to establish a neutral zone. These men returned aboard ship 
6 March. On the day after this force departed, a force of 70 men landed and re- 
mained two days. 

Several more landing parties went ashore at La Ceiba. A party of 41 men 
landed on 8 March. Another force of 86 Marines and seamen went ashore at La 
Ceiba and proceeded to Mazapon to establish a neutral zone. A force of 24 men 
from the Denver landed on 9 March. All three of these forces returned aboard 
their ships on 13 March. 

Fighting temporarily ended early in March, but events necessitated one 
more landing. On 18 March, the American Minister at Tegucigalpa reported 
widespread looting, the loss estimated at $400,000. Among foreign residents, 
the British and Chinese suffered the greatest property losses, but at least two 
American-owned stores were looted. The American legation and consulate 
were fired at and the American Minister believed that the lives of all Ameri- 
cans in the city were in imminent danger. Having obtained the permission of 
the Commandante, an American force of 176 men landed at San Lorenzo on 
18 March. Part of the force proceeded to Toncontin and established a radio 
station, while the remainder traveled to Tegucigalpa. That city fell to the rebels 
on 28 April, and shortly thereafter order was reestablished. The force returned 
aboard ship 30 April 1924. 

Sources: Clark 115-17; Ellsworth 96-98; 2 Hackworth 331. 

Case No. 122, 1924 — China (Shanghai) 

Beginning 3 September 1924, there was intermittent fighting between the 
Chekiang and Kiangsu forces in the vicinity of Shanghai, the nearest battle 
taking place about nine miles from the city. This fighting was the beginning of a 
new civil war in northern China, one that resulted in the overthrow of 
President Tsao Kun and the establishment of a provisional government. 

As a precautionary measure, several foreign nations with naval vessels in the 
harbor landed forces on 9 September. These forces included approximately 260 
Americans, 360 Britons, 500 Frenchmen, 400 Japanese and 100 Italians. Also 
present was a force of about 1,000 men from the Shanghai Volunteer Corps. 
These troops took-up stations in the city so that they could protect foreigners 
in the event that fighting occurred. Many refugees also sought protection in the 
city, there being from six to seven thousand new arrivals daily beginning 29 
August 1924- By 23 October 1924, the danger having passed, the refugees 

169 



Forcible Protection of Nationals Abroad 



began returning to the rural districts. The American force withdrew the same 
day. 29 

Sources: Clark 90; [1924] 1 Foreign Rel. U. S. 361, 371, 383 (1939); 2 Hackworth 332-33. 

Case No. 123, 1924 — Honduras 

Disorder returned to Honduras in September 1924. Threats of murder, looting 
and burning endangered American lives and property. On 10 September, the 
second line cruiser USS Rochester (CA-2) landed a force of 111 men at La 
Ceiba and then proceeded to Tela. The Governor, believing that the presence 
of American forces would ensure the preservation of order, requested that the 
Marines be left ashore, but they withdrew 15 September 1924- 

Source: Clark 117. 

Case No. 124, 1924 — China (Tungchow) 

By 24 October 1924, the Kiangsu forces having captured Peking, staged a 
successful coup d'etat against the government of President Tsao Kun. The 
unsettled political condition and a report that the Shensi troops at Tungchow 
were acting lawlessly caused the US legation at Peking to send a force of 10 
Marines that day to protect about 100 American citizens in Tungchow. 

Sources: Clark 90; [1924] 1 ForeignRel. V. S. 385 (1939). 

Case No. 125, 1924 — China (Peking) 

The unsettled state of affairs following the overthrow of President Tsao Kun 30 
caused the American legation in Peking to request that the Commander in 
Charge of the Asiatic Fleet provide reinforcements for the legation guard. A 
landing party of 125 Marines arrived in Peking on 28 October 1924. A second 
detachment of 100 men arrived on 4 November 1924. 

Source: Clark 90. 

Case No. 126, 1924-1926 — China (Shanghai) 

By 1925 it became apparent that the provisional government of China, 
established in 1924, had not successfully unified the country, including the 
northern region. The Chihli forces retained much power in the Yangtze Valley 
and Chang Tso-lin was the virtual ruler of Manchuria, having established his 
headquarters at Tientsin in the autumn of 1924. On 2 January 1925, the 
American Minister at Peking reported that the provisional government of 



170 



Appendix I 



Marshal Tuan, Provisional Chief Executive and Prime Minister of China, 
could not endure much longer without Chang's support. Another 
consideration was Inspector General of the Chinese Army, Feng Yu-hsiang's, 
seizure of Peking in October 1924. In short, the political situation in northern 
China remained quite unstable. 

The various factions clashed regularly around Shanghai as early as January 
1925, and the lives and property of foreigners in the city were in great danger. 
The American consul general at Shanghai reported that the United States and 
others landed sailors in the city on 15 January 1925. The American force took a 
position with the French as guards of interned Chinese soldiers at the Haig Re- 
serve School. (The force withdrew 24 January). On 19 January, the Heads of 
Legation to China met at a meeting in Peking: 

Resolved, that with a view to maintaining the neutrality of Shanghai and for the 
protection of foreign life and property therein the consular body are authorized, 
as an emergency measure and during the continuance of fighting and the 
presence of bodies of troops near Shanghai (but no longer) and without referring 
the matter to the diplomatic body, in their discretion to expel from the 
International Settlement (or to refuse admissions thereto to) Chinese military 
leaders (being any officer with the rank of general now or recently having active 
command of troops) and political chiefs who serve the internal affairs of such 
militarists who may, in the opinion of the consular body, use the Settlement for 
fitting out military expeditions or otherwise as a base of military operations or for 
political agitation. 

The United States landed several forces at Shanghai to protect Americans 
and other foreigners residing in the city's International Settlement. The first 
party to land was a Marine detachment of 28 men from the gunboat USS Sacra- 
mento (PG- 19) which went ashore 15 January, and remained there until 22 Jan- 
uary. The Second Expeditionary Force, which was organized in the Philippines, 
landed at Shanghai on the day that the first force departed, remaining until 9 
February. A period of relative calm ensued until 2 June, when a landing party of 
127 men went ashore at Shanghai to protect foreign residents. They returned 
aboard ship 29 August. A Marine detachment of reinforcements from the sec- 
ond line cruiser VSS Huron (CA-9) landed on 1 July, and remained ashore un- 
til 29 July. For the next five months there were no incidents. Then, on 30 
December 1925, new outbreaks necessitated the landing of still another de- 
tachment of 69 men at Shanghai. They withdrew 12 March 1926. 

Sources: Background 56; Ellsworth 42-43; [1925] 1 Foreign Rel U. S. 588-89, 595-96 (1940); 
2 Hackworth 332-33. 

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Forcible Protection of Nationals Abroad 



Case No. 127, 1925 — Honduras 

An uprising in Honduras in April 1925 again resulted in American 
intervention. American lives and property at La Ceiba were endangered by the 
threat of Red Ochoa, some insurgent forces, to attack the city. The USS Denver 
(C-14), with the permission of the Governor and the Commandante, landed 
165 men on 20 April. The American forces quickly declared the city a neutral 
zone: as hoped, all subsequent fighting took place outside the city. After having 
been ashore about 30 hours, the force reembarked the following day. 

Source: Clark 117. 

Case No. 128, 1925 — China (Nanking) 

The revolutionary unrest in China was accompanied by labor disputes and 
strikes. On the morning of 7 June 1925, a large crowd, apparently comprised of 
the International Export Company's striking workmen, gathered outside the 
company's facility at Nanking and attempted to "rush" for the waterfront, on 
which the company's river water intake was located. At the request of the 
company's manager and the British and American consuls, the USS John D. 
Ford (DD-228) landed a small party at the plant. The strikers quickly 
abandoned the rush. 

Source: Clark 91. 

Case No. 129, 1925-1926 — China (Hankow) 

In 1926, Cantonese forces invaded the Yangtze Valley and disrupted the 
region's organized government. Demonstrations and rioting, often directed 
against foreigners, were widespread. The situation of all foreigners residing in 
the area became perilous, especially since local authorities often were impotent 
to provide adequate protection. Therefore, the United States again landed 
forces on several occasions to preserve American lives and property. (Even 
before the above invasion the United States landed a force of 24 men at 
Hankow on 16 June 1925 as a part of the International Defense Force. These 
men were stationed in the former Russian Concession of the city.) 

The city of Hankow fell into a state of disorder when the Cantonese were 
poised to move upon it in early September 1926. At the request of Chinese au- 
thorities, several landing parties from American naval vessels landed to restore 
order on 3 September. British, French, and Japanese forces also landed. Most of 
the American forces withdrew on 16 September; a small guard remained for 



172 



Appendix I 



some time thereafter. As a precautionary measure, British, Japanese and 
American naval units landed at Hankow on 5 November 1926, and remained 
three days. 
Sources: Background 56; Clark 91; Offutt 141-42. 

Case No. 130, 1925 — China (Kiukiang) 

The second USS Stewart (DD-224) landed a force of 20 armed men at Kiukiang 

on 17 June 1925, to protect American citizens during a period of revolutionary 

fighting in that city. 

Source: Clark 90. 

Case No. 131, 1925 — Panama 

Rent increases in Panama City led to rent strikes and harassment of 
landlords. Tenants combined in order to hinder the collection of these 
increased rents. The disorder spread as various groups of workers went on 
secondary strike. When rioting broke out the Panamanian Government 
found it impossible to control the situation, much less afford protection to 
foreign residents. Many Americans appealed to the American charge 
d'affaires in Panama and the Governor of the Canal Zone for protection 
against the threats of mob violence. 

On 12 October 1925, at the request of the Panamanian Minister of Foreign 
Affairs, 600 American troops entered the city of Panama. Within three days 
relative peace was restored and the force was reduced to one battalion, which 
was quartered in the jail and police station in order to keep them from public 
view. The situation continued to improve and the remainder of the troops 
withdrew 23 October 1925. 
Source: Clark 128-29. 

Case No. 132, 1925-1926 — China (Tientsin) 

During the period of revolutionary unrest in 1925 and 1926, American forces 

landed at Tientsin to protect Americans and their interests. At the request of 

the American legation, a force of 100 men was sent to Tientsin on 28 October 

1925. An additional force of 127 men landed in the city on 9 November, and 

remained until 9 June 1926. 

Sources: Clark 91; Ellsworth 42-43. 



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Forcible Protection of Nationals Abroad 



Case No. 133, 1926 — Nicaragua 

Shortly after the American legation guard withdrew from Managua on 3 
August 1925, a new period of political unrest began in Nicaragua. 31 A band of 
government troops favoring the Conservative Party arrested various Liberal 
leaders, including the Minister of Finance. Their avowed purpose was to 
liberate the President from the alleged domination of the Liberal element. The 
leader of the revolutionary forces, General Chamorro, steadily increased the 
pressure on the Nicaraguan Government. The disturbances increased in 
number and intensity, except for an 11 -day period in September when 
American naval vessels were present in Nicaraguan waters. Through highly 
questionable political maneuvering, General Chamorro succeeded in gaining 
executive power on 14 January 1926. The United States refused to recognize 
his government. 

In May 1926, fighting erupted on the east coast of Nicaragua as the Liberals' 
violence increased in their opposition to Chamorro. The American Consul at 
Bluefields reported that the lives and property of all foreigners were endan- 
gered and requested the dispatch of an American naval vessel. On 7 May, a 
force of 213 men went ashore at Bluefields. Beginning on 28 May, this force 
gradually was withdrawn, the final group reembarking on 6 June. Intermittent 
landings of US forces for the protection of foreign lives and property took place 
throughout the remainder of 1926. 

Sources: Clark 122-24; Ellsworth 128-31. 

Case No. 134, 1926 — China (Kiukiang) 

When Kiukiang fell to the Cantonese forces on 4 November 1926, the 
inhabitants of the city resisted little. However, as a precautionary measure, 
British, Japanese and American naval units landed forces for the protection of 
foreigners. Subsequently, British sources reported further fighting during the 
Northern forces' counterattack at Kiukiang. By 6 November 1926, the 
Cantonese completely occupied the city and all was quiet. Consequently, the 
American forces returned aboard their ships. 

Sources: Clark 91; [1926] 1 Foreign Rel. V. S. 650 (1941); 2 Hackworth 333; Offutt 142. 

Case No. 135, 1926 — China (Chingwangtao) 

In the latter part of 1926 the fighting among the various Chinese revolutionary 
factions intensified to such an extent that the Commander of the Asiatic Fleet 
found it necessary to land a force at Chingwangtao, the center of trouble. The 



174 



Appendix 1 

force of 127 Marines from the USS Gold Star (AG- 12) landed on 7 November 
1926, and remained five days. 
Source: Ellsworth 43. 

Case No. 136, 1926 — China (Ichang) 

On 17 December 1926, a small force from the American gunboat VSS Elcano 
(PG38) landed at Ichang to protect US citizens and their property during a 
battle between the Cantonese and Northern forces. The men returned aboard 
ship when the conflict ended. 

Source: Offutt 142. 

Case No. 137, 1926-1933 — Nicaragua 

The Nicaraguan Congress named Adolfo Diaz President of Nicaragua on 1 1 
November 1926. Six days later, the United States recognized his government. 
There were signs of rebellion from the beginning of his administration. Diaz 
called on the United States to provide protection for Americans and other 
foreigners in Nicaragua from the activities of the revolutionists. American 
officials believed that Diaz's real motive was to employ US assistance in support 
of his government. The American charge d'affaires informed Diaz that the 
United States was not obligated to protect his government by physical means. 

But, in view of the many requests from American citizens for protection, the 
United States did land a force of Marines and sailors on 23 December 1926 at 
Bluefields and Rio Grande Bar. The next day, additional forces went ashore at 
Puerto Cabezas, a stronghold of the Liberal revolutionaries. The United States 
established neutral zones in all these cities and required all Nicaraguans 
therein to disarm. The American force even censored radio transmissions in 
these zones until the Liberals registered a complaint with the U. S. Department 
of State. By 10 January 1927, the American force had established three more 
neutral zones at Pearl Lagoon, Prinzapulka and Rama. By month's end the 
American forces ashore and in the territorial waters of Nicaragua numbered 
about 5,000 men. 

Having been obstructed from fighting in the eastern region of the country by 
the establishment of neutral zones, the Liberals turned their attention toward 
Managua. When it began to appear that the Liberals would succeed in cutting 
the capital city off from the sea, a force of 600 seamen landed at Corinto on 20 
February to guard the railroad link to Managua. The United States also then 
established more neutral zones at Corinto, Managua and Grenada. 

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Forcible Protection of Nationals Abroad 



President Coolidge sent Secretary of State Stimson to Nicaragua as his per- 
sonal representative. Stimson arrived 17 April 1927, and promptly met with 
American officials, Nicaraguan Government officials, and various leaders of 
the Liberal party in search of a peaceful settlement. In May, when it appeared 
that a settlement loomed, the US troops stationed themselves between the op- 
posing factions so that their arms might be received in case of an agreement. 
An additional force of 800 Marines was landed to arrest the terrorism and ma- 
rauding which was contributing to the general state of anarchy. 

Consensus emerged, and on 15 May 1927, Stimson reported that the civil 
war in Nicaragua was over. Yet, the entire American force did not withdraw 
immediately. American troops remained to supervise elections and aid in the 
establishment and maintenance of the Guardia Nacional de Nicaragua. In- 
deed, the last of the American forces in Nicaragua did not depart until 2 Janu- 
ary 1933. 
Sources: Clark 124-27; Ellsworth 129-33; Offutt 137-40. 

Case No. 138, 1927 — China (Hankow) 

Although the entire city of Hankow had fallen to the Cantonese forces on 3 
September 1926, there were subsequent disturbances that the Cantonese 
could not control. On 3 January 1927, for instance, serious rioting occurred 
along the edge of the British concession at Hankow. The British authorities 
called on the local police, including several hundred Cantonese soldiers, for 
protection, but the police were unable to assert firm control over the situation 
even with the assistance of British ships on the river. That evening an 
American landing force of 50 Marines went ashore to protect American 
citizens and their property until evacuation could be arranged. 

The American consul general reported on 5 January that the situation in 
Hankow was critical, with 20 or 30 American and British citizens having been 
evacuated already and three more fully-loaded ships scheduled to sail that eve- 
ning. The next day about 60 more American and British women and children 
went aboard the Kutwo, an American naval vessel. American naval vessels also 
assisted in evacuating refugees from Kiukiang and Ichang via Hankow to 
Shanghai. By 19 January 1927, approximately 583 people had been evacuated 
from Hankow, including 83 Americans. 
Sources: Clark 91; [1927] 2 Foreign Rel. V. S. 237, 239, 240, 248 (1942); Offutt 142. 



176 



Appendix I 



Case No. 139, 1927 — China (Shanghai) 

Violence broke anew in the International Settlement of Shanghai in 1927. The 
Expeditionary Battalion, consisting of three companies of Marines, landed at 
Shanghai on 9 February 1927, to reinforce the forces guarding the Settlement. 
A dramatic increase came when 1,250 Marines arrived 24 February. Although 
a few small parties went ashore for brief periods prior to 16 March, the entire 
force did not land until that date. With this addition, the total number of men 
in the foreign forces available for service at Shanghai numbered approximately 
13,000, of whom approximately 7,000 were British. 

On 21 March, the US consul general at Shanghai reported that outside the 
International Settlement in Chapei, turmoil existed. Laborers had attacked 
Chinese police stations. He also reported demonstrations in the streets of the 
Settlement. The Municipal Council declared a state of emergency and re- 
quested that foreign naval forces join local volunteers and police in defending 
the Settlement. American, Japanese and Dutch naval forces landed the same 
day. Approximately 1,500 Marines landed for the protection of American lives 
and property. 

The disorder continued on 22 March. There were armed uprisings and nu- 
merous incidents of looting and burning in the Chinese territory adjoining the 
Settlement. The forces of General Pi Shu-cheng, commander of the Northern 
Troops in the Shanghai area, shot and killed a number of the agitators. Many 
foreigners, including Americans, were evacuated under police escort. The con- 
sul general at Shanghai reported that he was attempting to evacuate Ameri- 
cans in isolated areas without the use of military force. Nearly all foreigners in 
the northern area were evacuated by 23 March. 

On 25 March a landing party of 62 Marines went ashore at Shanghai to pa- 
trol the Settlement. They returned aboard ship the following day. They landed 
once again on 31 March, and remained ashore until 3 April 1927. 

Sources: Clark 91-92; Ellsworth 43; [1927] 2 Foreign Rel. V. S. 89, 90 (1942); 2 Hackworth 
333. 

Case No. 140, 1927 — China (Nanking) 

On 22 March 1927, when the entry of the Cantonese forces into the city of 
Nanking appeared imminent, the United States landed a force of 1 1 men from 
the USS Noa (DD-343) to protect the American consulate during any ensuing 
disturbances. It seemed quite likely that the Northern forces would riot should 
they be defeated or forced to withdraw. A signalman also was sent to Standard 
Oil Hill, the residence of Earle Hobard of Standard Oil Company. This 

177 



Forcible Protection of Nationals Abroad 



measure insured communication between the consulate and the Noa at all 
times. 

Trouble had been anticipated at Nanking many weeks before the actual out- 
break of violence on 23 March. The foreign consuls at Nanking had been evac- 
uating their nationals out of the danger zone to other cities, primarily 
Shanghai. By 23 March, around 100 American women and children had left, 
but 68 men, 153 women and 88 children still remained. As Nationalist soldiers 
began to enter the city, 104 women and 69 children were sent aboard the 
American destroyers, Noa and VSS Preston (DD-327). In addition to these ves- 
sels, the British light cruiser HMS Emerald and three Japanese destroyers were 
present. 

Six seamen from the Preston also were stationed at the Hill residence on 23 
March. Looting and rioting broke out about 6 P.M. that night when about 
10,000 defeated Northern soldiers, passing through the city to the Yangtze 
River, returned again to the city, having discovered it would be impossible to 
cross the river. The following day, Dr. J. E. Williams, an American citizen and 
Vice President of Nanking University, was killed. On the same day, Canton- 
ese troops attacked the American, British and Japanese consuls, wounding 
the latter two. The American consular staff and 24 refugee foreigners who 
were under their protection escaped to the Hill residence before the consul- 
ate was looted. 

During this entire time, Mr. Davis from the American consulate had tried in 
vain to contact a responsible Cantonese official to ensure the safety of all for- 
eigners. The US forces were hesitant to move because they had been instructed 
to act only to protect life and not merely property. Therefore, when the Can- 
tonese approached the Hill residence, the Americans did not request assis- 
tance from the Noa and the Emerald until attack was imminent. Shortly 
thereafter, the Cantonese attacked and the occupants requested landing forces 
from the ships. 

When it appeared that the landing force would be unable to reach the Hill 
residence in time to save the occupants from the Cantonese, the Emerald, Noa 
and Preston shelled the area. The Noa and Preston then sent a landing force to 
rescue the 52 Americans and foreign refugees in the house. 32 However, the Hill 
group missed the landing force and was picked up by the British destroyer HMS 
Wolsey (D-98). There were no fatalities. 

Immediately afterward, a conference of British and American naval officers 
was held on board the Emerald. They drew up a set of demands to the Canton- 
ese requiring: (1) the protection of all foreigners still ashore and their evacua- 
tion by 10 A.M. the next day; (2) orders to protect foreign property; and (3) the 



178 



Appendix I 



presence of the Cantonese general commander on board the Emerald before 1 1 
P.M. that night to arrange for the protection of foreigners. 

Negotiations took place that night and the next afternoon. The Chinese 
replies were insolent and evasive. Indirectly, word came that General Chiang 
Kai-shek was coming to Nanking to take charge of the situation. Over 100 
Americans (45 women, 90 men and 20 children), 17 British and several for- 
eign nationals were still left in the city. Most of the Americans assembled at 
Nanking University. It finally was decided that if all foreign nationals were 
not released by late in the afternoon of 25 March, the USS Isabel (PY-10), the 
Noa, the Emerald and the Wolsey would begin firing on salient military points 
in Nanking. The Chinese general became alarmed, and by 4:30 P.M. British 
Marines and all but two British civilians were returned. The Americans also 
were released from the University and by 8 P.M. all were aboard the vessels. 

During the incident, American ships had fired 34 rounds and the Emerald 
had fired 76. Six Chinese civilians and some soldiers had been killed. Only five 
business men and two missionaries remained in the city. A great part of the for- 
eign population of Nanking, including people of many nationalities, had been 
saved by the American action. 

Sources: Clark 92-93; [1927] 2 Foreign Rel U. S. 146-70 (1942); 2 Hackworth 333; Offutt 
142-49. 

Case No. 141, 1927 — China (Hankow) 

At the request of the manager of the Standard Oil Company, a landing party of 

24 seamen went ashore at Hankow on 27 April 1927, to quell a "fracas." 

Source: Clark 93. 

Case No. 142, 1927 — China (Chinkiang) 

On 22 May 1927, landing parties from the destroyers USS John D. Ford 
(DD-228) and the HMS Wolverine (D-78) went ashore at Chinkiang to fight a 
fire which began when a shell hit a Socony fuel oil tank. Apparently the shell 
had been fired by the Northern forces from the northern bank of the river 
during revolutionary disturbances in that city. 

Source: Clark 94. 

Case No. 143, 1927 — China (Tientsin) 

By June 1927, the Southern forces had pushed the civil war to the northern 

part of China. It seemed certain that the area around Tientsin would be the 



179 



Forcible Protection of Nationals Abroad 



next target of their attack. The American Minister to China reported that the 
lives and property of all US citizens were in danger. He suggested that 
additional forces be sent to Tientsin to afford Americans complete protection 
and ensure that there would be no repetition of the serious incidents which had 
occurred recently in South China. 33 

On 2 June 1927, a force of Marines about the size of one regiment sailed 
from Shanghai, arriving at Taku Bar two days later. On 6 June 1927, the force 
reached Tientsin, where they remained until the danger had passed. 
Sources: Ellsworth 44; [1927] 2 Foreign Rel V. S. 124-27 (1942). 

Case No. 144, 1927 — China (Canton) 

A two-day revolt supported by the Communists began in Canton on 11 

December 1927. The same day, a force of nine Marines landed and proceeded 

to the Hackett Medical College to evacuate U. S. citizens whose lives were 

endangered by the rebellion. Evacuated persons were taken to another part of 

the city where the rebels had not been active. 

Source: Clark 94-95. 

Case No. 145, 1932 — China (Shanghai) 

Following the outbreak of war between Japan and China, the American consul 
at Shanghai, fearing for the lives and property of Americans in the city, 
requested that additional forces be landed to assure their protection. On 5 
February 1932, the U. S. transport USS Chaumont (AP-5) arrived at Shanghai 
and landed a force of 1,178 men. They remained ashore until 1 July 1932. 
Source: Clark 97. 

Notes 

1 . Omitted are the instances considered at length in Chapter IV, where the United States 
has taken similar action in the post-World War II period. 

2. Some readers may regard this Appendix as too inclusive. Prior lists, for instance, have 
contained as few as 69 cases compared to the 145 listed herein. See Wormuth, "The Nixon 
Theory of the War Power: A Critique," 60 Calif. L. Rev. 623, 654 (1972). But see generally 
Appendix A to Emerson, War Powers Legislation, 74 W. Va. L. Rev. 53, 88 111 (1971). If the 
present compilation errs in this respect, the reader can separate the wheat from the chaff quite 
easily. 

3. See Case No. 5. 

4. See Case No. 7. 

5. See Perrin v. United States, 4 Ct. CI. 543 (1868). 

6. The United States took the position that American forces could be sent to occupy the 
railroad stations of the Panama Railroad Co. in the event of revolution under the following 

180 



Appendix I 



clause of Article 35 of the 1846 Treaty of Peace, Amity, Navigation, and Commerce with New 
Granada (United States of Colombia): 

And, in order to secure to themselves the tranquil and constant enjoyment of these 
advantages, and as an especial compensation for the said advantages and for the 
favours they have acquired by the 4th, 5th and 6th articles of this Treaty, the United 
States guarantee positively and efficaciously to New Granada, by the present 
stipulation, the perfect neutrality of the before mentioned Isthmus, with the view that 
the free transit from the one to the other sea, may not be interrupted or embarrassed 
in any future time while this Treaty exists. 

6 C. Bevans, Treaties and Other International Agreements of the United States of America 
1776-1949, at 879-80 (1971). 

7. The executive officer of the Iroquois was none other than Alfred T. Mahan. See T. 
Mahan, from Sail to Steam 242-47 (1907). 

8. Brazil, France, Great Britain, Italy and Spain. 

9. See Case No. 28. 

10. See Case No. 13. 

11. See Case No. 55. 

12. Of these forces, 8,000 were Japanese; 4,800 Russian; 3,000 British; 2,500 American; 800 
French; 40 Italian and 25 Austrian. 

13. Tientsin fell to the Allies on 14 July 1900. 

14. See Case No. 54. 

15. Article VII 

The Chinese Government has agreed that the quarter occupied by the legations shall 
be considered as one specially reserved for their use and placed under their exclusive 
control, in which Chinese shall not have the right to reside and which may be made 
defensible. 

Article IX 

The Chinese Government has conceded to the Powers, in the protocol annexed to the 
letter of the 16th of January 1901, the right to occupy certain points, to be determined 
by an agreement between them, for the maintenance of open communication between 
the capital and the sea. The points occupied by the powers are: 

Huang-tsun, Lang-fang, Yang-tsun, Tientsin, Chum-liang Ch'eng, Tang-ku, 
Lu-tai, Tangshan, Lan-chou, Chang-li, Ch'in-wang tao, Shan-hai Kuan. 

1 C. Bevans, Treaties and Other International Agreements of the United States of America 
1776-1917, at 306-07 (1968). 

16. The United States had the right to intervene under Article III of the 1903 Treaty with 
Cuba, which stated: 

The Government of Cuba consents that the United States may exercise the right to 
intervene for the preservation of Cuban independence, the maintenance of a 
government adequate for the protection of life, property, and individual liberty, and 
for discharging the obligations with respect to Cuba imposed by the Treaty of Paris on 
the United States, now to be assumed and undertaken by the Government of Cuba. 

6 C. Bevans, Treaties and Other International Agreements of the United States of America 
1776-1949, at 1118 (1971). 

17. See Case No. 80. 

18. See id. 

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Forcible Protection of Nationals Abroad 



19. By 8 March 1912, the distribution of foreign troops in the vicinity of Tientsin was as 
follows: about 575 American, 1,200 British, 1,500 Japanese and 100 German troops, 
respectively, and about 200-225 Russian, Austrian, French and Italian troops combined. 

20. See Case No. 73. 

21. See Case No. 68 for the text of Article III. 

22. American landings in Nicaragua, 1912: 

(1)3 August — A force of 102 men landed at Corinto and traveled by rail to Managua to 
guard the American legation and protect American interests. 

(2) 14 August — Reinforcements numbering 354 men disembarked at Corinto and 
proceeded to Managua, arriving there 15 August. This force also was used to guard the 
legation. 

(3) 28 August — A force of 35 1 seamen and Marines landed at Corinto for field service. 

(4) 29 August — A force of 120 men landed at Corinto for duty ashore. They returned 
aboard ship 24 and 25 October 1912. 

(5) 30 August — A force of 25 men went ashore at San Juan del Sur to protect the cable 
station and American interests from 30 August to 6 September 1912, and from 11 
September to 27 September 1912. 

(6) 4 September — A provisional regiment of 781 Marines disembarked at Corinto. 

(7) 5 September — An additional force of 323 sailors and Marines landed at Corinto for 
duty in the field. 

(8) 19 September — Another 50 men landed at Corinto. 

(9) 3 November — A force of 21 men landed at San Juan del Sur. Twelve of these men 
were withdrawn on 5 November and the balance on 8 November. 

23. See Case No. 112 for more information about the activity of the legation guard at 
Managua. 

24. See also Case Nos. 82, 83, 84, 90 and 91. 

25. Landings by American forces in Cuba, 1917: 

(1) 12 February — A force of 32 men landed at Jobabo Anchorage to protect a sugar 
plantation near Trinidad. They reembarked 13 February. 

(2) 13 February — A landing party of 17 men from the USS Tucker (DD-57) went ashore 
at Manzanillo to protect the American consulate. They were relieved on the same day by 
a similar force from the USS Dubuque (PG- 1 7) . The guard was withdrawn 15 February. 

(3) 17 February — A force of 29 men from the USS Paducah (PG-18) disembarked and 
was quartered on the Cuban gunboat 24 de Febrero until 20 February. 

(4) 20 February — The 29 men quartered on board the Cuban gunboat 24 de Febrero 
landed and occupied a house at Casilda until 22 March. 

(5) 25 February — A force of 218 men landed at Guantanamo Bay. They were 
transported by water to Caimanera, where they embarked by train for Guantanamo City. 
With the exception of one detachment of Marines, they reembarked 6 March. 

(6) 25 February — A force of more than 200 Marines from three different vessels went 
ashore at Guacanayabo Gulf at the dock of the Francisco Sugar Company of New York to 
protect the lives and property of American citizens. Each of the three detachments 
returned to their ship on a different date: 3, 4 and 7 March. 

(7) 27 February — A force of 32 men landed at Nuevitas Bay and remained until 28 
February. 

(8) 5 March — A force landed at Santiago. 

(9) 7 March — A force landed at Rio Canto to protect the Rio Canto Sugar Plantation. 
They returned aboard ship on 1 1 March. 



182 



Appendix I 



(10) 8 March — A force of 358 men landed at Santiago to protect the lives and property 
endangered by the revolutionaries' bombardment of the city. About 120 of these men 
returned to their ship on 17 March. 

(11)8 March — A force of 153 Marines and seamen went ashore at Santiago, returning 
to their ship 18 March. 

(12) 8 March — A detail of 12 men landed at Santiago to guard the El Cobre mines. 

(13) 9 March — A company of Marines went ashore at Santiago and remained ashore 
until 21 March. 

(14) 9 March — A party of 122 men landed at Guantanamo Bay and traveled to 
Guantanamo City where they remained until 24 March. 

(15) 9 March — Two companies of Marines landed at Santiago. 

(16) 9 March — Additional men landed at Santiago to reinforce the party which had 
landed there on 5 March. This force was relieved on 10 March. 

(17) 10 March — Eight men from the USS Montana (ACR-13), a first-class armored 
cruiser, landed and returned to ship daily at Caimanera until 23 March. 

(18) 10 March — Another company of Marines landed at Santiago, remaining ashore 
until 18 March. 

(19) 10 March — Small detachments landed at Preston and Lacajo where they remained 
until 12 March, when they were relieved by another landing party. 

(20) 1 1 March — A force of 13 men landed at Guara and remained there until 23 March. 

(21) 12 March — A force of 25 sailors and Marines was stationed at Banes and San 
Jeronimo to protect American interests. Part of the force reembarked on 15 March, the 
remainder on 20 March. 

(22) 12 March — A landing party from the USS Machias (PG-5) relieved the 
detachments which had landed at Preston and Lacajo on 10 March. 

(23) 13 March — A detachment of 20 Marines from the U. S. Naval Station at 
Guantanamo Bay was sent to Boqueron to protect American property. They remained 
until 24 March. 

(24) 15 March — A small detachment landed at Nipe Bay to protect lives and property 
at San Jeronimo. They returned to ship on 18 March. 

(25) 17 March — A force landed at Batey to guard the mill of the Manti Sugar Company. 
They reembarked 21 April, when they were relieved by a detachment of Marines. 

(26) 19 March — A detachment of 20 men landed at Santiago to protect the El Cobre 
mines. They returned aboard ship 22 March. 

(27) 19 March — A force of 100 men landed at Guantanamo Bay and proceeded to 
Guantanamo City, where they remained until 22 March. 

(28) 20 March — A company of Marines went ashore at Daiquiri, where they remained 
until 23 May. 

(29) 20 March — A force of 41 men landed from the USS Machias for duty ashore. Part 
of the force re-embarked the same day, with the remainder reembarking on 23 March. 

(30) 21 March — A landing party of 18 Marines and sailors went ashore and remained 
until 23 March. 

(31) 21 March — For several days small detachments were landed daily at Santiago to 
protect the Aguadores railroad bridge and the El Cobre mines. 

(32) 22 March — A force of two infantry companies and special details landed at 
Santiago to relieve a detachment of Marines, re-embarking 23 March. 

(33) 22 March — A company of Marines was sent to Guantanamo City. They returned 
aboard ship 23 May. 

183 



Forcible Protection of Nationals Abroad 



(34) 22 March — A company of Marines disembarked at Guantanamo Bay, remaining 
ashore until 30 March. 

(35) 22 March — A force of 46 men landed to relieve forces at Preston, Guara and Nipe 
Bay. They returned aboard ship 25 March. 

(36) 24 March — Fifty seamen landed at Cienfuegos, reembarking the same day. 

(37) 24 March — A detachment of 18 Marines landed at Santiago to guard the El Cobre 
mines. They reembarked 28 March. 

(38) 24 March — A small detachment landed at Santiago each night through 27 March 
to protect the Aguadores Bridge. 

(39) 25 March — A detachment of 13 men landed at Guara, returning aboard ship 7 
April. 

(40) 27 March — A detachment of 10 men landed at Pelton, remaining until 2 April. 

(41) 28 March — A small detachment landed daily at Cienfuegos for the protection of 
the Aguadores Bridge. Another force of 21 men landed there to protect the El Cobre 
mines. These men were relieved 15 April by a company of Marines. 

(42) 31 March — A company of Marines landed at Nipe Bay to relieve various 
detachments. It reembarked 24 May. 

(43) 15 April — A company of Marines landed to relieve a detachment at Cienfuegos. 

(44) 25 April — A small force landed at Preston, returning aboard ship 26 April. 

(45) 27 August — The Marine 7 th Regiment disembarked at Guantanamo Bay and 
remained there until 28 August 1919. 

26. From the beginning of World War I, the Czechs had fought in a special unit of the 
Russian army called the Druzhina. The Czech Corps was in the Ukraine when the Germans 
resumed their offensive against Russia in February 1918. The Czechs made arrangements with 
Bolshevik leaders to evacuate the Corps via the Trans-Siberian Railway and Vladivostok. 
Subsequently, the Bolsheviks changed their minds and decided to draft the Czechs into the 
Soviet army. The Czechs resisted and hostilities broke out on 26 May 1918. 

27. See Case No. 101. 

28. See Case No. 87. 

29. See also Case Nos. 124 and 125. 

30. See Case No. 124. 

3 1 . The U. S. Government announced its intention to withdraw the legation guard about 14 
months prior to the actual date of withdrawal. At the request of President Martinez, who 
apparently believed that the guard was necessary to preserve order, the United States had 
delayed the withdrawal. Martinez sought to reverse the American decision but met with no 
success. 

32. The occupants of the house included Mr. and Mrs. Hobart, several American civilians, 
two officers from the Emerald, five British civilians, two Scandinavians, two Russians, two 
Signalmen from the destroyers and the guard of six seamen from the Preston. 

33. For example, the Nanking incident of March 1927. See Case No. 140. 



184 



Appendix II 



A History of United States Navy Regulations 

Governing the Use of Force to Protect the 

Lives and Property of Nationals Abroad* 



CONTENTS 

Introduction 187 

I. Regulations and Instructions Relating 

to His Majesty's Service at Sea (11th Ed. 1772) 188 

II. Rules for the Regulation of The Navy 

of The United Colonies of North America (1775) 190 

III. An Act for The Government of the 

Navy of the United States (1799) 190 

IV. United States Navy Regulations (1802) 191 

V. United States Navy Regulations (1814) 192 

VI. United States Navy Regulations (1818) 192 

VII. United States Navy Regulations (1821) 193 

VIII. United States Navy Regulations (1841) 194 

IX. United States Navy Regulations (1853) 194 

*The author wishes to acknowledge the research assistance provided by Stephen T. Bolton, Esq., 
Class of 1972, University of Virginia School of Law and Member of the Ohio Bar, and Captain J. 
Ashley Roach, USN, Office of the Legal Adviser, US Department of State, in the preparation of 
this Appendix. Punctuation and capitalization has been standardized to modern usage. 



Forcible Protection of Nationals Abroad 



X. United States Navy Regulations 

XL United States Navy Regulations 

XII. United States Navy Regulations 

XIII. United States Navy Regulations 

XIV. United States Navy Regulations 

XV. United States Navy Regulations 

XVI. United States Navy Regulations 

XVII. United States Navy Regulations 

XVIII. United States Navy Regulations 

XIX. United States Navy Regulations 

XX. United States Navy Regulations 

XXI. United States Navy Regulations 

XXII. United States Navy Regulations 

XXIII. United States Navy Regulations 

XXIV. United States Navy Regulations 



1858) 
1863) 
1865) 
1869) 
1870) 
1876) 
1893) 
1896) 



195 



195 



196 



197 



200 



202 



203 



206 



1900andl905) 208 



1909) 
1913) 
1920) 
1948) 
1973) 
1990) 



210 



212 



215 



217 



220 



223 



Summary 226 



186 



Appendix II 



Introduction 



The United States has long viewed military intervention in foreign coun- 
tries to protect the lives and property of US nationals as a proper use of 
naval power. 1 US Navy Regulations dating back to 1775 have provided naval 
commanders with the authority to undertake such action. Additionally, 
throughout much of this period the accepted norms of international law coun- 
tenanced such activity under such headings as self-preservation or nonpolitical 
intervention. 2 

In recent years, however, the international political and legal context has 
changed drastically. With the emergence of the United Nations and the 
post-colonial proliferation of independent States, new norms and new needs 
have been generated. For instance, under Article 2(4) of the UN Charter the 
use of force is proscribed, except when used in self-defense or when sanctioned 
by the United Nations. Article 51, however, preserves the possibility of the 
valid use of force in situations involving self-defense. At the same time, emer- 
gent nations have demonstrated an anti-colonial attitude bent on the elimina- 
tion of many formerly accepted practices, such as intervention for the 
protection of foreign nationals and their property, which are now viewed as 
tools of imperialistic control. 3 

Despite this substantial shift in international norms, the regulations govern- 
ing the conduct of the US Navy in this area remained essentially unchanged 
until 1973. With the promulgation of the 1973 and 1990 Regulations however, 
it appears that the Navy Regulations have become more congruent with the re- 
alities of present-day international life, thus attenuating much of the former 
criticism regarding their compatibility with contemporary international law. 4 

This Appendix constitutes a textual analysis of the regulations which have 
guided and continue to guide the US Navy in its use of force to protect the lives 
and property of US nationals abroad. The analysis proceeds with a listing of 
those regulations in each edition of US Navy Regulations that relate to the pro- 
tection of nationals and then following each by a brief commentary addressed 
to the question of how each edition fits in with the overall development of the 
current Navy regulations. 

The regulations analyzed in this study begin with the British Navy Regulations 
of 1749 and 1772 and continue with their offspring, 5 the US Navy Regulations of 
1775, 1799, 1802, 1814, 1818, 1821, 1841, 1853, 1858, 1863, 1865, 1869, 1870, 

187 



Forcible Protection of Nationals Abroad 



1876, 1893, 1896, 1900, 1905, 1909, 1913, 1920, 1948, 1973 and 1990. Histories 
of the various editions of British or US Navy Regulations until 1973 are not avail- 
able, for reasons partially explained in the paragraph that follows. 

Although the Constitution grants Congress sole authority to issue regula- 
tions for the armed forces, 6 Congress, except for the first three Regulations of 
1775, 1799 and 1800, merely ratified the rules compiled by the President and 
the Secretary of the Navy. 7 Even this limited supervisory rule was abdicated in 
1862, when Congress gave the Secretary of the Navy the authority to issue reg- 
ulations subject to the approval of the President. 8 As a practical matter, this 
delegation probably ensured that regulations were written and revised at the 
behest of senior naval officers. 9 In any event, records of the administrative pro- 
cess in the formulation of US Navy Regulations prior to 1973 are unavailable. 
Therefore, authorship and the intended results remain unclear for earlier regu- 
lations. This leaves the actual language of the regulations and the interpreta- 
tions subsequently given to them by naval commanders as the only sources of 
interpretative standards. 

As noted above, the regulations in force until 1973 did not differ greatly 
from those regulations in force during the nineteenth century. The 1973 and 
1990 Regulations vary considerably from their predecessors by omitting 
out-of-date passages from earlier regulations. It is the purpose of the following 
analysis to examine the extent to which these new revisions have brought the 
US Navy Regulations into line with contemporary international law. 

I. Regulations And Instructions Relating To His 
Majesty's Service At Sea (11th ed. 1772) 

The Flag'Officer or Commander-in-Chief 

Article VI. To direct the Naval Officers abroad, according to the Rules of 
the Navy. When he is in Foreign Parts, where Naval or other Officers are estab- 
lished, he is to conform himself, as much as possible, to the standing Rules of 
the Navy, in such Directions as he shall have Occasion to give them; and never 
to put them upon any extraordinary Expenses, unless the Service shall abso- 
lutely require the same. 

The Captain or Commander 

Article XLII. Not to go into Port unnecessarily. He is not to go into any 
other Port than such as his Orders direct him, unless by inevitable Necessity, 

188 



Appendix II 



and then to make no unnecessary Stay there. If he is employed in a cruising Sta- 
tion, he is to keep the Sea the Time required by his Orders; but if he is com- 
pelled by any Accident to return sooner into Port, he is to send in Writing the 
Reasons thereof to the Secretary of the Admiralty, and also to the Com- 
mander-in-Chief, if any such be there, and to put to Sea again so soon as the 
Ship's Wants are supplied. 

Article XLV. To demand English Seamen out of foreign Ships. When he 
meets with any Foreign Ship or Vessel, he is to send a Commission Officer to 
inquire if any Seamen, who are His Majesty's Subjects, be on Board her, and to 
demand all such, obliging their Masters to pay them their Wages to that Day. 
But this is to be done with civil and friendly Behavior on the Part of His Maj- 
esty's Officers, who are to be very careful not to offer any Violence or ill Treat- 
ment to the Subjects of His Majesty's Friends or Allies. 10 

Commentary 

The Eleventh Edition of Regulations and Instructions Relating to His Majesty's 
Service at Sea, established by His Majesty in Council in 1772, is the direct an- 
cestor of all subsequent editions of US Navy Regulations. This text is a restate- 
ment of the Sixth Edition, published in 1749 to update British Navy 
Regulations from a code which originated during the reign of Henry VIII. The 
three articles cited above are identical in both the Sixth and Eleventh Editions. 

Article VI is concerned with the relationship between a Flag-Officer or 
Commander-in-Chief and the agents of the British government already estab- 
lished in foreign ports. The "unless" clause at the end of the article qualifies the 
instructions to conform to the "Rules of the Navy" and the rule against extraor- 
dinary expenditures placing the needs of the service paramount. The Flag-Offi- 
cer, as the senior officer present in foreign waters, is the person best-qualified to 
determine the needs of the service. 

On the other hand, according to Article XLII, a Captain or Commander act- 
ing independently may not even enter a foreign port without orders unless "in- 
evitable necessity" forces him to do so. Again the Captain is the person who 
determines whether inevitable necessity exists. The second sentence, dealing 
with a return from cruising station, refers to the home port of the ship. 

Article XLV was the cause of much hostility in the United States, since it 
was the legal justification used for impressment of American sailors during the 
Revolutionary and Napoleonic wars. While this rule provided a vehicle 
whereby British sailors could be liberated from foreign employment, it often 
was used to conduct a forced draft. 

189 



Forcible Protection of Nationals Abroad 



II. Rules For The Regulation Of The Navy Of The 
United Colonies Of North America (1775) 

Article 2 1 . If any ships of the Thirteen United Colonies shall happen to 
come into port in want of provisions, the warrant of a Commander-in-Chief 
shall be sufficient to the agent or other instrument of the victualling to supply 
the quantity wanted; and in urgent cases where delay may be hurtful, the war- 
rant of the Captain of the ship shall be of equal effect. 11 

Commentary 

As stated in the Introduction to this Appendix, 12 for the most part these 
rules were copied from the British Regulations of 1749 and 1772. They are con- 
cerned with the prerogatives and responsibilities o( command and matters af- 
fecting supply, discipline and conduct in action. Articles VI and XLV of the 
British Regulations were not included. The only provision which might be said 
to govern conduct in foreign ports short of an actual engagement is Article 21, 
which corresponds roughly to Article XLII of the British Regulations. Refer- 
ence to purchases in foreign ports, however, is omitted. This omission was con- 
sistent with the coastal character of the continental Navy. 

III. An Act for the Government of the Navy of the United States (1799) 

Article 18. Warrant for supply of provisions. If any ships of the United States 
shall happen to come into port in want of provisions, the warrant of the com- 
mander oi the squadron, or of a captain where there is no commander of a 
squadron present, shall be sufficient to procure the supply of the quantity 
wanted, from the agent, or navy agent at such port. 13 

Commentary 

Article 18 is based on Article 21 of the 1775 Rules for the Regulation of the 
Navy of the United Colonies of North America, amended to reflect the inde- 
pendence won two decades earlier. Perhaps in recognition of the infant Navy's 
engagement in an undeclared war with France in the West Indies, any squad- 
ron commander's warrant was now sufficient even in non-urgent cases. 

This provision was not included in the 1800 revision, which repealed the 
1799 statute entirely. 14 No reason for this omission is apparent. 

190 



Appendix II 

IV. United States Navy Regulations (1802) 

Of the Duties of a Commander-in-Chief, or Commander of a Squadron 

Article 16. When he is in foreign parts where naval or other officers are es- 
tablished, he is to conform himself as much as possible to the standing rules of 
the navy, in such directions as he shall have occasion to give them, and never 
to put them under any extraordinary expenses, unless the service should abso- 
lutely require the same. 

Of the Duties of a Captain or Commander 

Article 40. He is not to go into any port, but such as are directed by his or- 
ders, unless necessitously obliged, and then not to make any unnecessary stay; 
if employed in cruising, he is to keep the sea the time required by his orders, or 
give reasons for acting to the contrary. 15 

Commentary 

Of the Duties of a Commander-in-Chief, Article 16, is almost an exact re- 
production of Article VI of the 1772 British Regulations for the Flag-Officer or 
Commander-in-Chief. It allows an American Commander-in-Chief identical 
discretion as to expenditures as his British counterpart, and similarly ignores 
the situation of where provisions are located in a port where naval authorities 
are not established. It is reasonable to assume that both the British and Amer- 
ican regulations were concerned more with the possibility of commanders 
putting into port too often or making extravagant purchases than with any 
danger of intervention by force in foreign countries. 

Of the Duties of a Captain or Commander, Article 40, succeeded Article 18 
of the 1799 Rules. It is a close paraphrase of Article XLII of the 1772 British 
Regulations for the Captain or Commander. 

The reinsertion of both these articles may be explained by the fact that 
the US Navy by this time had become transoceanic and had begun a series 
of engagements in the Mediterranean using ships of substantial size and fire- 
power. Visitation of foreign ports by necessity was thus a distinct possibility. 
There is no indication, however, that the necessity standard refers to any- 
thing other than matters concerning the administration and operation o{ 
the vessel itself. 

191 



Forcible Protection of Nationals Abroad 



V. United States Navy Regulations (1814) 

Of the Duties of Commander of a Squadron 

Article 16. When he is in foreign parts, where naval or other agents are es- 
tablished, he is to conform himself, as much as possible, to the standing rules of 
the navy, in such directions as he shall have occasion to give them; and he is 
never to put them under any extraordinary expenses, unless the service should 
absolutely require the same. 

Of the Duties of a Captain or Commander 

Article 4 1 . He is not to go into any port, but such as are directed by his or- 
ders, unless necessitously obliged, and then not to make any unnecessary stay; 
if employed in cruising, he is to keep the sea the time required by his orders, or 
give reasons for acting to the contrary. 16 

Commentary 

Article 16 is repeated from Article 16 of the 1802 Regulations governing the 
duties o{ a Commander-in-Chief or Commander of a Squadron with certain 
clarifying changes. "Agents" is substituted for "officers" who may be in foreign 
parts. The words "he is" are added at the beginning of the last clause, as are sev- 
eral commas. 

Article 41 repeats Article 40 of the 1802 Regulations governing the Duties 
of a Captain or Commander. 

VI. United States Navy Regulations (1818) 
Commanders of Fleets or Squadrons 

Article 15. Conform to established rules. He shall conform to the stand- 
ing rules of the navy, in such directions as he shall give to established 
agents, and incur no expense that the public service does not render abso- 
lutely necessary. 

Regulations for the Promotion of Discipline, Cleanliness, etc. 

Article 28. To visit no port without orders. He [the Captain] is not to go into 
any port, but such as may be directed by his orders, unless by absolute necessity, 

192 



Appendix II 



and then not to make any unnecessary stay. If employed in cruising, he is to 
keep the sea, the time required by his orders, or give reasons for acting to the 
contrary, to the Secretary of the Navy. 17 

Commentary 

Article 15 repeats the substance of Article 16 of the 1814 Regulations gov- 
erning Squadron Commanders but with significant differences. 

The section of the regulations was entitled "Commanders of Fleets or 
Squadrons" to reflect the increased size of the Navy in the preceding four years. 
The language referring to "foreign parts" was omitted, applying the regulation 
everywhere there were "established agents." This latter term replaced the 
phrase "where naval or other agents are established." "Extraordinary" was de- 
leted from the last clause, which was reworded for clarity. 

Article 28 is derived from Article 41 of the 1814 Regulations governing the 
duties of a Captain. The subject matter is now under the heading "Regulations 
for the Promotion of Discipline, Cleanliness, etc.," perhaps also reflecting the 
expanding navy. The remaining changes are for purposes of clarification. The 
report of reasons for not keeping to sea as required is now specified to be made 
to the Secretary of the Navy. 

VII. United States Navy Regulations (1821) 
Commanders of Fleets or Squadrons 

Article 15. He shall conform to the standing rules of the navy, in such direc- 
tions as he shall give to established agents, and incur no expense that the public 
service does not render absolutely necessary. 

Regulations for the Promotion of Discipline, Cleanliness, etc. 

Article 28. He is not to go into any port but such as may be directed by his or- 
ders, unless by absolute necessity, and then not to make any unnecessary stay. 
If employed in cruising, he is to keep the sea the time required by his orders, or 
give reasons for acting to the contrary to the Secretary of the Navy. 18 

Commentary 

The 1821 Regulations are identical to the 1818 Regulations with respect to 
these articles. 

193 



Forcible Protection of Nationals Abroad 



VIII. United States Navy Regulations (1841) 
Commanders of Vessels 

Article 186. When directed to cruise, he is to keep the sea the time required 
by his orders, or produce satisfactory reasons for acting to the contrary. 

Article 187. He is not to go into any port but such as may be designated or 
permitted by his instructions, unless from necessity, and then to make no un- 
necessary stay. 19 

Commentary 

The 1841 edition of the regulations was never approved by Congress, but ev- 
idently the Navy adhered to them as if they had been. 

Article 28 of the 1821 Regulations concerning the Promotion of Discipline, 
Cleanliness, etc. was split into two articles, 186 and 187, in the 1841 Regula- 
tions. Reasons for failure to keep to the sea (Article 186) are no longer specifi- 
cally to be submitted to the Secretary of the Navy. Entering an undesignated 
port is now permitted merely "from necessity." The other changes are for pur- 
poses of clarity. 

The direction to conform to the standing rules of the Navy in Article 15 of 
the 1821 Regulations governing the duties of Commanders of Fleets or Squad- 
rons is omitted from this and succeeding editions. 

IX. United States Navy Regulations (1853) 

Commanders of Vessels 

Article 21. When directed to cruise, he is to keep the sea the time required 
by his orders, or produce satisfactory reasons for deviating from them. 

Article 22. He is not to go into any port but such as may be designated or 
permitted by his instructions, unless from necessity, and then to make no un- 
necessary stay. 20 

Commentary 

Articles 21 and 22 are identical to Articles 186 and 187 of the 1841 Navy 
Regulations, except for a clarifying change to Article 2 1 . If a Commander does 
not keep to the sea the time required by his orders, he must now produce 

194 



Appendix II 



satisfactory reasons for "deviating from them" rather than for "acting to the 
contrary." 

X. United States Navy Regulations (1858) 

Commanders of Vessels 

Article 28. To keep the sea the time required by his orders. When directed 
to cruise, he is to keep the sea the time required by his orders, or produce satis- 
factory reasons for deviating from them. 

Article 29. To visit no port not designated in his instructions. He is not to go 
into any port but such as may be designated or permitted by his instructions, 
unless from necessity, and then to make no unnecessary stay. 21 

Commentary 

Articles 28 and 29 are identical to Articles 21 and 22 of the 1853 
Regulations. 

XL United States Navy Regulations (1863) 

Article VL 

General Duties of Line Officers 

The Commander-in-Chief of a Fleet or Squadron 

To place himself in communication with the diplomatic agents of the 
United States. 

On arriving within the limits of his station on foreign service, he is to place 
himself in communication with the diplomatic agents of the government of the 
United States thereabouts, and he is to afford them, on his own responsibility, 
such aid and cooperation in all matters for the benefit of the government as 
they may require, and as he may judge to be expedient and proper. 

Officers Commanding Vessels 

To keep the sea the time required by his orders. 

When directed to cruise, he is to keep the sea the time required by his orders, 
or produce satisfactory reasons for deviating from them. 

195 



Forcible Protection of Nationals Abroad 



To visit no port not designated in his instructions. 

He is not to go into any port but such as may be designated or permitted in 
his instructions, unless from necessity, and then to make no unnecessary stay. 22 

Commentary 

That portion of the 1863 Regulations governing the duties of officers com- 
manding vessels is identical to Articles 28 and 29 of the 1858 Regulations. 
However, that portion oi the 1863 Regulations governing the duties of the 
Commander-in-Chief of a fleet or squadron reflects the different Navy of 1863. 
In contrast to Article 15 of the 1821 Regulations concerning commanders of 
fleets or squadrons, there is no mention of the "rules of the navy" or "expenses," 
but rather "co-operation in all matters for the benefit of the government." The 
emphasis shifted from the simple maintenance of ships in foreign waters to the 
implementation of foreign policy through the use of naval forces. 

Moreover, the actions of the Commander-in-Chief are "on his own respon- 
sibility" and as he judges to be "expedient and proper." The regulations vest an 
individual commander with the discretion to aid and cooperate with diplo- 
matic officials in foreign ports as he sees fit. Presumably, he may exceed their 
recommendations if he feels such action to be appropriate. This article, then, is 
the first instance where naval commanders were given the authority to take 
matters into their own hands and intervene in foreign lands to protect US na- 
tionals under the umbrella phrase "for the benefit of the government." 

XIL United States Navy Regulations (1865) 

General Duties of Line Officers 

The Commander-in-Chief of a Fleet or Squadron 

Article 310. On arriving within the limits of his station on foreign service, he is 
to place himself in communication with the diplomatic agents of the government 
of the United States thereabouts, and he is to afford them, on his own responsi- 
bility, such aid and cooperation in all matters for the benefit of the government 
as they may require, and as he may judge to be expedient and proper. 

Officers Commanding Vessels 

Article 346. Should he find it necessary to go into a port not designated or 
permitted by his instructions, he will make no unnecessary stay, and will report 
the cause of the necessity and of any delay that may occur. 23 

196 



Appendix II 



Commentary 

These 1865 Regulations are the last of the original sailing instructions that 
were closely related to the 1775 and 1802 editions of the Regulations. 

Article 310 repeats verbatim that portion of Article VI of the 1863 Regula- 
tions pertaining to the Commander-in-Chief of a fleet or squadron previously 
quoted. 

Article 346 is based on that portion of Article VI of the 1863 Regulations 
pertaining to the duty of officers commanding vessels to keep to sea the time re- 
quired by his orders. The revised version no longer prohibits entry into an 
undesignated port. The change in tenor reflects the Navy's increased role. For 
the first time, however, the commanding officer must report the cause of the 
necessity for entering the undesignated port and of any delay that may occur. 

No longer is there a requirement to keep to the sea when directed to cruise. 

XIII. United States Navy Regulations (1869) 
Instructions for Officers, Afloat: Commander-in-Chief 

Article 52. The Commander-in-Chief is not to attempt the arrest of a de- 
serter, whatever may be his class, by sending an officer under his command af- 
ter him, but he is to make the proper application to the civil authorities of the 
place where he may be. 

Article 53. No Commander-in-Chief is ever to take upon himself the power 
of inflicting punishment upon the subjects of any civilized nation, with whom 
we have treaties, for any alleged violation of treaties or international law. 

Article 54. In the absence of a United States Minister he is to enter into dip- 
lomatic discussions on all matters of this kind, with the nation which is sup- 
posed to be the aggressor, and will take the earliest opportunity to lay the 
correspondence before the United States Government. 

Article 157. A Commander-in-Chief is on all occasions to do his utmost to 
protect American commerce in all quarters. 

Article 165. If he finds an American seaman employed on board a foreign 
vessel who complains that he is there contrary to his will, he will institute all 
necessary inquiries, and if he finds that the said seaman is improperly detained, 
the Commander-in-Chief will apply to the proper authority to have him re- 
leased and will give him a passage to the nearest American port. 

197 



Forcible Protection of Nationals Abroad 



Article 169. The Commander-in-Chief should observe himself that all un- 
der his command comply with the laws of blockade when a harbor or port is 
blockaded by a nation with whom we are at peace. 

Article 170. He is to observe the strictest neutrality, and afford no assis- 
tance to either party not called for by the interests of humanity. 

Article 171. He is at the same time to make every effort to protect the lives 
and property of American citizens that may be within the lines of the 
belligerents. 

Article 172. In time of war, a Commander-in-Chief will cause all the laws of 
neutrality to be strictly observed by those under his command. 

Article 173. A Commander-in-Chief will also take upon himself to exercise 
particular authority over all American letters-of-marque and privateers that 
come within the limits of his command, and will ascertain if they have made 
any fraudulent seizures or captured vessels belonging to neutral powers, which 
they had no right to capture. 

Article 1 74. He will exercise his judgment as to what disposal to make of said 
privateers or letters-of-marque. 

Article 175. In every case investigated by the Commander-in-Chief, he will 
send a report to the Secretary of the Navy as soon as possible. 

Article 176. When on a foreign station, it is desirable that the best feeling 
should exist between the Commander-in-Chief of a United States fleet or 
squadron and the American Minister, Charges and Consuls, but while every 
courtesy should be paid to these officials, it must be understood that the Com- 
mander-in-Chief is responsible to the Secretary of the Navy alone, for his 



acts 



24 



Commentary 

These regulations, which Secretary of the Navy George M. Robeson pro- 
mulgated after the Civil War, are direct ancestors of the 1990 Regulations cur- 
rently in effect. The most obvious explanation for the break between the 1865 
and 1869 Regulations is the emergence of a powerful ironclad US Navy during 
the Civil War. Although the Royal Navy resumed its role as the most powerful 
afloat in the decade after the Civil War, the United States had become a signif- 
icant force. Navy Regulations from 1869 to the present day have reflected this 
fact, dealing extensively with the duties of commanders in foreign waters and 
ports. 

This edition of the regulations was in effect for only one year. Yet the direct 
ancestors of the articles quoted below from the 1990 Regulations all appear for 

198 



Appendix II 



the first time in 1869. Textually, these articles are the first "modern" Navy reg- 
ulations. Geopolitically, they are an extension of the 1865 Regulations in that 
they reflect the Navy's increased awareness of its new foreign relations role. 

Article 52 is a clear prohibition against sending forces ashore in a foreign 
land to pursue and arrest a deserter from a US ship, such matters are left to the 
local civil authorities. 

Article 53 is repeated in conjunction with Article 54 in several other edi- 
tions. The prohibition against retorsion or reprisal by a naval Com- 
mander-in-Chief acting on his own authority is restricted to "civilized 
nation[s] , with whom we [the United States] have treaties." Presumably, "civi- 
lized" States meant European or Latin American ones. In any event, the regu- 
lation contains an open invitation to ignore treaties or international law with 
regard to "savage" nations such as Hawaii, most African tribal kingdoms, and 
most East Asian kingdoms. The article is thus narrow in its scope and permits a 
Commander-in-Chief to punish in most instances. 

Article 54 requires diplomatic discussions with an alleged civilized aggressor 
with whom the United States has treaties. Those areas excluded from Article 
53 are similarly excluded here. These articles establish the Com- 
mander-in-Chief as the arbiter oi whether there has been a breach of treaty or 
violation of international law towards the United States. They further leave it 
to him to determine whether a nation is civilized. Freedom to use force is con- 
tingent on these determinations. 

Article 157 appears in one form or another in all succeeding editions of the 
Regulations. It makes the US Navy the guardian of US commerce both on the 
high seas and in foreign waters. There is no element of discretion. A Com- 
mander-in-Chief must do everything he can to protect American commerce. 

Article 165 corresponds roughly to Article XLV of the 1772 British Regula- 
tions. The US counterpart does not allow boarding, and it becomes operative 
only when a complaint is received. It may be implemented only by foreign au- 
thorities. The only affirmative actions a Commander-in-Chief may make in 
such a case are "necessary inquiries" and passage of the seaman to the nearest 
American port. 

Article 169, in conjunction with the following seven articles, is repeated in 
some form in all succeeding editions of the regulations. In this edition Articles 
169 through 176 should be read together. 

Article 169 specifically requires compliance with the laws of blockade when 
the United States is at peace with the blockading nation. Article 170 com- 
mands that US naval forces shall remain neutral in the face of a blockade, ex- 
cept where assistance is called for in the interests of humanity. Article 171 

199 



Forcible Protection of Nationals Abroad 



gives the Commander-in-Chief the responsibility to protect the "lives and 
property of American citizens within the lines of the belligerents." Article 172 
commands US forces shall remain neutral "in time of war" when the United 
States is not a party. Article 173 gives American Commanders-in-Chief juris- 
diction over letters-of-marque and privateers operating in areas under their 
command and makes them a prize court of original jurisdiction. Article 174 au- 
thorizes judgment on letters-of-marque and privateers within the jurisdiction 
of a Commander-in-Chief. Article 175 requires that a report of such cases be 
sent to the Secretary of the Navy. Article 176 makes the Commander-in-Chief 
solely responsible to the Secretary of the Navy for his acts while on foreign 
station. 

The thrust of these seven articles is that Commanders-in-Chief are urged to 
respect blockades by friendly nations and to comply with the laws of neutrality 
when the United States is not at war. At the same time, Commanders-in-Chief 
are authorized, on their own initiative, to intervene in wars to which the 
United States is not a party on humanitarian grounds. Commanders-in-Chief 
are also obliged to engage in forcible self-help for the protection of Ameri- 
can lives and property, at least with respect to wars to which the United 
States is not a party. They must justify such actions only to the Secretary of the 
Navy. 

XIV. United States Navy Regulations (1870) 

Duties of Commander-in-Chief 

Section 52. He will preserve, so far as in him lies, the best feeling and the 
most cordial relations with the ministers and consuls of the United States on 
foreign stations, and will extend to them every official courtesy. He will also 
duly consider such information as they may have to give him relating to the in- 
terests of the United States, but he will not receive orders from such sources, 
and he will be responsible to the Secretary of the Navy, in the first place, for his 
acts. 

Section 53. He will not take upon himself the power of inflicting punish- 
ment upon the people of any civilized nation with whom we have treaties, 
for any violation, alleged or otherwise, of such treaties or of international 
law. 

Section 54. In the absence of a diplomatic representative of the United 
States, he will enter into correspondence on matters of this kind with the au- 
thorities of the nation which may be supposed to have been the aggressor, and 

200 



Appendix II 



will take the earliest opportunity to communicate all the information in his 
possession to the government of the United States. 

Section 55. He will do his utmost on all occasions to protect the commerce 
of the United States. 

Section 94. During wars to which the United States is not a party, he shall 
himself observe the strictest neutrality between the belligerents, and shall re- 
quire every one under his command to practice the like observance. 

Section 95. He shall comply with the laws of blockade, when a harbor or port 
is blockaded by a nation with whom the United States is at peace, and will re- 
quire the like compliance by all under his command. 

Section 96. He shall at the same time make every effort to protect the lives 
and property of citizens of the United States within the lines of the 
belligerents, and will so instruct the Commanding Officers of his fleet or 
squadron. 

Officers Commanding Vessels 

Section 247. When not acting under the orders of a superior officer, he will 
be governed by the regulations for the Commander-in-Chief, so far as they may 
be applicable to his case. 25 

Commentary 

Section 52 repeats the substance of Article 176 of the 1869 Regulations. 
Sections 53 through 55 repeat the substance of Articles 53, 54 and 157 of the 
1869 Regulations. Section 94 generally repeats Articles 170 and 172 of the 
1869 Regulations. The regulation clarifies the scope of responsibility by placing 
the context as " [d] uring wars to which the United States is not a party." Other- 
wise, it is a combination of the two earlier articles. 

Section 95 repeats Article 169 of the 1869 Regulations, while Section 96 re- 
peats Article 171 of the 1869 Regulations. In addition, the Com- 
mander-in-Chief is to extend his responsibility to the commanding officers of 
his squadron or fleet. 

Section 247 incorporates the regulations for a Commander-in-Chief by refer- 
ence, the first instance of such an incorporation, and there is no indication of a 
captain's responsibilities while on foreign station except as mentioned previously. 

The most interesting aspect of the 1870 Regulations is what they do not in- 
clude. Omitted from the 1869 Regulations are Article 52 on the arrest of de- 
serters, Article 165 on American seamen held aboard foreign vessels, and 

201 



Forcible Protection of Nationals Abroad 



Articles 173, 174 and 175 on letters-of-marque and privateers. The "civilized 
nations" distinction is retained in Section 53, however, so that the right to con- 
duct reprisals in many areas of the world remains along with the right of 
self-help to protect American lives and property. 

XV. United States Navy Regulations (1876) 

Instructions for Officers, Afloat: Commanders-in-Chief 

Article 2 1 . Punishment of people of any civilized nation. He will not inflict 
punishment upon the people of any civilized nation with whom the United 
States has treaties, for any violation, alleged or otherwise, of such treaties or of 
international law; but in the absence of a Diplomatic Representative, he will 
enter into correspondence with the authorities o{ the nation, and will take the 
earliest opportunity to communicate all the information in his possession to the 
Navy Department. 

Article 22. Protection of commerce of the United States. He will do his ut- 
most on all occasions to protect the commerce of the United States. 

Article 49. Neutrality of the United States; Protection of lives and property. 
During wars in which the United States are neutral, he will observe the strictest 
neutrality and require the same of everyone under his command. He will com- 
ply strictly with the laws o{ blockade, when a harbor or port is blockaded by a 
nation with whom the United States is at peace, making every effort to protect 
the lives and property of citizens of the United States within the lines of the 
belligerents, and will so instruct the commanding officers of the vessels of his 
fleet or squadron. 

Officers Commanding Vessels. 

Article 101. Acting singly. When acting singly, he will be governed by the 
regulations for the Commander-in-Chief, so far as they may be applicable to his 

case. 26 

Commentary 

Article 21 consolidates Sections 53 and 54 of the 1870 Regulations. Article 
22 repeats Section 55 of the 1870 Regulations. Article 49 consolidates Sections 
94, 95 and 96 of the 1870 Regulations. Article 101 repeats in substance Section 
247 of the 1870 Regulations. 

202 



Appendix 11 

XVI. United States Navy Regulations (1893) 

A Commander-in-Chief 

Duties in Time of War 

Article 276. To protect and convoy merchant vessels. He shall afford pro- 
tection and convoy, so far as it is within his power, to merchant vessels of the 
United States and to those of allies. 

Article 277. Duties during a war between civilized nations at peace with the 
United States. During a war between civilized nations with which the United 
States is at peace, he, and all under his command, shall observe the laws of neu- 
trality and respect a lawful blockade, but at the same time make every possible 
effort that is consistent with the rules of international law to preserve and pro- 
tect the lives and property of citizens of the United States wherever situated. 

Article 278. To observe the principles of international law and treaty obliga- 
tions. When the United States is at war, he shall require all under his command 
to observe the rules of humane warfare and the principles of international law. 
When dealing with neutrals, he shall cause all under his command to observe 
the rules of international law and the stipulation of treaties, and expect and ex- 
act a like observance from others. 

Article 283. Intercourse with Foreigners. 

1. Territorial authority. He shall exercise great care that all under his com- 
mand scrupulously respect the territorial authority of foreign civilized nations 
in amity with the United States. 

2. No armed force to be landed. No armed force for exercise, target practice, 
funeral escort, or other purpose shall be landed without permission from the lo- 
cal authorities; nor shall large bodies of men be granted leave to visit the shore 
without a similar permission; nor shall men be landed to capture deserters. 

3. No target practice within. Great-gun target practice, even at floating tar- 
gets, shall not take place within foreign territorial waters or at any point from 
which shots may fall therein, without permission. 

Article 284. Violation of international law and treaty obligations. On occa- 
sions where injury to the United States or to citizens thereof is committed or 
threatened, in violation of the principles of international law or treaty rights, 
he shall consult with the diplomatic representative or consul of the United 
States, and take such steps as the gravity of the case demands, reporting imme- 
diately to the Secretary of the Navy all the facts. The responsibility for any 

203 



Forcible Protection of Nationals Abroad 



action taken by a naval force, however, rests wholly upon the commanding offi- 
cer thereof. 

Article 285. Use of force. The use of force against a foreign and friendly 
State, or against anyone within the territories thereof, is illegal. The right of 
self-preservation, however, is a right which belongs to States as well as to indi- 
viduals, and in the case of States it includes the protection of the State, its 
honor, and its possessions, and the lives and property of its citizens against arbi- 
trary violence, actual or impending, whereby the State or its citizens may suffer 
irreparable injury. The conditions calling for the application of the right of 
self-preservation cannot be defined beforehand, but must be left to the sound 
judgment of responsible officers, who are to perform their duties in this respect 
with all possible care and forbearance. In no case shall force be exercised in 
time of peace otherwise than as an application of the right of self-preservation 
as above defined. It can never be exercised with a view to inflicting punishment 
for acts already committed. It must be used only as a last resort, and then only 
to the extent which is absolutely necessary to accomplish the end required. 

Article 286. Landing an armed force in foreign territory. Whenever in the 
application of the above-mentioned principles it shall become necessary to 
land an armed force in foreign territory on occasions of political disturbance 
where the local authorities are unable to give adequate protection to life and 
property, the assent of such authorities, or of some one of them, shall first be 
obtained, if it can be done without prejudice to the interests involved. 

Article 288. To protect the commerce of the United States. So far as lies 
within their power, Commanders-in-Chief and captains of ships shall protect 
all merchant vessels of the United States in lawful occupations, and advance 
the commercial interests of their country, always acting in accordance with in- 
ternational law and treaty obligations. 

Article 289. Dealings with foreigners. He shall impress upon officers and 
men that when in foreign ports it is their duty to avoid all possible causes of of- 
fense to the authorities or inhabitants; that due deference must be shown by 
them to the local laws, customs, ceremonies, and regulations; that in all deal- 
ings with foreigners moderation and courtesy should be displayed; and that a 
feeling of good will and mutual respect should be cultivated. 27 

Commentary 

This edition of the regulations is the earliest to use the text still found in the 
1948 Navy Regulations, which remained in force until 1973. The articles deal- 
ing with conduct and intervention in foreign lands reflect the policy of wide 

204 



Appendix II 



discretion intended to promote maximum flexibility expressed in the 1869, 
1870 and 1876 editions. 

This edition, however, is even more insistent on the duty to intervene in a 
foreign land when an American interest is threatened. Article 285 in particular 
sets forth the right of self-preservation as the justification for self-help by the 
United States. Although the doctrine of self-preservation must be read against 
the background of the times — 1893 falls in the midst of the age of imperial- 
ism — it also must be remembered that similar language was retained through 
the 1948 edition of the regulations, which until 1973 were the law of the 
Navy. 28 

Article 277 corresponds in substance to Article 49 of the 1876 Regulations. 
For the first time the "civilized nations" qualification is applied to the neutrality 
and blockade rule, no longer confined to the punishment rule. See Article 21 of 
the 1876 Regulations. The responsibilities the article imposes upon a Com- 
mander-in-Chief remained unchanged. 

Article 284 corresponds roughly to Article 21 of the 1876 Regulations. The 
thrust of the article is changed from punishment to prevention. The clear im- 
port here is that the Commander-in-Chief is to take only such action as is nec- 
essary to forestall injury to the United States or its citizens or to put a stop to 
harmful acts in progress. The necessity to report to the Secretary of the Navy is 
unchanged, but the responsibility for any action taken rests entirely with the 
Commander-in-Chief himself. 

Article 285 is similar to Article 277 in that it is designed to give Com- 
manders-in-Chief the authority to intervene in situations where US interests 
are threatened. Unlike Article 277 and its predecessors, Article 285 can be in- 
voked in peacetime. All previous regulations permitting intervention in foreign 
countries to protect American lives and property either refer to a wartime situ- 
ation or call for consultation with local authorities before action is taken, ex- 
cept in the most extreme circumstances. While the exercise o{ "sound 
judgment of responsible officers" may give rise to the use of force only as a last 
resort, and then only to the degree necessary to end the threat to American in- 
terests, the breadth of the right of self-preservation means that any prospect of 
violence that could threaten the United States or its citizens may be sufficient 
grounds for intervention by a naval force. 

It is noteworthy that the "civilized nations" qualification is not included in 
this article. Instead, mention is made in the first sentence of "a foreign and 
friendly state." There is no indication, however, that application of Article 285 
is in any way limited to friendly States. The essential prerequisite is the threat 
to US interests, wherever they are. 

205 



Forcible Protection of Nationals Abroad 



Article 286 requires the Commander-in-Chief to seek the assent of local au- 
thorities before he lands an armed force pursuant to Article 285. The wording 
of this article makes it clear that "local authorities" can mean any of the fac- 
tions which might claim to rule a city or country. Also, assent is to be obtained 
only if it does not involve further danger to US interests. Thus, this article is 
not an important limitation on the discretion of the Commander-in-Chief. Ar- 
ticle 286 is otherwise interesting because it is the first to mention consent 
rather than consultation when dealing with the prospect of armed interven- 
tion. If nothing else, it reflects a desire on the part of the United States to justify 
its actions through the consent of the authority structure in the locality in 
which it is intervening. 

Article 288 repeats in substance Article 22 of the 1876 Regulations. The 
duty to protect the commerce of the United States is narrowed to include only 
merchant vessels in lawful occupations. Advancement o{ the commercial in- 
terests of the United States, which involves the policing of sea lanes and other 
tasks which ensure the free flow of commercial traffic, must be accomplished in 
accordance with international law and treaty obligations. The effect of this ar- 
ticle is to make the protection of commerce a less-aggressive task. There is no 
attempt to hold all American ships inviolate, no matter what actions they take, 
as might be inferred from the earlier regulations. 

Article 289 is a new rule requiring moderate conduct on the part of US Navy 
personnel while in foreign ports as invitees. 

XVII. United States Navy Regulations (1896). 

A Commander-in-Chief 

Duties in Time of War 

Article 277. To protect and convoy merchant vessels. He shall afford pro- 
tection and convoy, so far as it is within his power, to merchant vessels of the 
United States and to those of allies. 

Article 278. Duties during a war between civilized nations at peace with the 
United States. During a war between civilized nations with which the United 
States is at peace, he, and all under his command, shall observe the laws of neu- 
trality and respect a lawful blockade, but at the same time make every possible 
effort that is consistent with the rules of international law to preserve and pro- 
tect the lives and property of citizens of the United States wherever situated. 

206 



Appendix II 



Article 279. To observe the principles of international law and treaty obliga- 
tions. When the United States is at war, he shall require all under his command 
to observe the rules of humane warfare and the principles of international law. 
When dealing with neutrals, he shall cause all under his command to observe 
the rules of international law and the stipulation of treaties, and expect and ex- 
act a like observance from others. 

Article 284. Intercourse with Foreigners. 

1. Territorial authority. He shall exercise great care that all under his com- 
mand scrupulously respect the territorial authority of foreign civilized nations 
in amity with the United States. 

2. No armed forces to be landed. No armed force for exercise, target prac- 
tice, funeral escort, or other purpose shall be landed without permission from 
the local authorities; nor shall large bodies of men be granted leave to visit the 
shore without a similar permission; nor shall men be landed to capture 
deserters. 

3. No target practice without permission. Great-gun target practice, even at 
floating targets, shall not take place within foreign territorial waters or at any 
point from which shots may fall therein, without permission. 

Article 285. Violation of international law and treaty obligations. On occa- 
sions where injury to the United States or to citizens thereof is committed or 
threatened, in violation of the principles of international law or treaty rights, 
he shall consult with the diplomatic representative or consul of the United 
States, and take such steps as the gravity of the case demands, reporting imme- 
diately to the Secretary of the Navy all the facts. The responsibility for any ac- 
tion taken by a naval force, however, rests wholly upon the commanding officer 
thereof. 

Article 286. Use of force. The use of force against a foreign and friendly 
State, or against any one within the territories thereof, is illegal. The right of 
self-preservation, however, is a right which belongs to States as well as to indi- 
viduals, and in the case of States it includes the protection of the State, its 
honor, and its possessions, and the lives and property of its citizens against arbi- 
trary violence, actual or impending, whereby the State or its citizens may suffer 
irreparable injury. The conditions calling for the application of the right of 
self-preservation cannot be defined beforehand, but must be left to the sound 
judgment of responsible officers, who are to perform their duties in this respect 
with all possible care and forbearance. In no case shall force be exercised in 
time of peace otherwise than as an application of the right of self-preservation 
as above defined. It can never be exercised with a view of inflicting punishment 

207 



Forcible Protection of Nationals Abroad 



for acts already committed. It must be used only as a last resort, and then only 
to the extent which is absolutely necessary to accomplish the end required. 

Article 287. Landing an armed force in foreign territory. Whenever, in the 
application of the above-mentioned principles, it shall become necessary to 
land an armed force in foreign territory on occasions of political disturbance 
where the local authorities are unable to give adequate protection to life and 
property, the assent of such authorities, or of some one of them, shall first be 
obtained, if it can be done without prejudice to the interests involved. 

Article 289. To protect the commerce of the United States. So far as lies 
within their power, Commanders-in-Chief and captains of ships shall protect 
all merchant vessels of the United States in lawful occupations, and advance 
the commercial interests of this country, always acting in accordance with in- 
ternational law and treaty obligations. 

Article 290. Dealings with foreigners. He shall impress upon officers and 
men that when in foreign ports it is their duty to avoid all possible causes of of- 
fense to the authorities or inhabitants; that due deference must be shown by 
them to the local laws, customs, ceremonies, and regulations; that in all deal- 
ings with foreigners moderation and courtesy should be displayed; and that a 
feeling of good will and mutual respect should be cultivated. 29 

Commentary 

Articles 277, 278, 279, 284, 285, 286, 287, 289 and 290 of the 1896 Regula- 
tions are identical to Articles 276, 277, 278, 283, 284, 285, 286, 288 and 289, 
respectively, of the 1893 Regulations. 

XVIII. United States Navy Regulations (1900 and 1905) 

A Commander-in-Chief 

Duties in Time of War 

Article 297. To protect and convoy merchant vessels. He shall afford pro- 
tection and convoy, so far as it is within his power, to merchant vessels of the 
United States and to those of allies. 

Article 298. Duties during a war between civilized nations at peace with the 
United States. During a war between civilized nations with which the United 
States is at peace, he, and all under his command shall observe the laws of neu- 
trality and respect a lawful blockade, but at the same time make every possible 

208 



Appendix II 



effort that is consistent with the rules of international law to preserve and pro- 
tect the lives and property of citizens of the United States wherever situated. 

Article 299. To observe the principles of international law and treaty obliga- 
tions. When the United States is at war, he shall require all under his com- 
mand to observe the rules of humane warfare and the principles of 
international law. When dealing with neutrals, he shall cause all under his 
command to observe the rules of international law and the stipulation of trea- 
ties, and expect and exact a like observance from others. 

Article 304. Intercourse with Foreigners. 

1. Territorial authority. He shall exercise great care that all under his com- 
mand scrupulously respect the territorial authority of foreign civilized nations 
in amity with the United States. 

2. No armed force to be landed. No armed force for exercise, target practice, 
funeral escort, or other purpose shall be landed without permission from the lo- 
cal authorities; nor shall large bodies of men be granted leave to visit the shore 
without a similar permission; nor shall men be landed to capture deserters. 

3. No target practice without permission. Great-gun target practice, even at 
floating targets, shall not take place within foreign territorial waters or at any 
point from which shots may fall therein, without permission. 

Article 305. Violation of international law and treaty obligations. On occa- 
sions where injury to the United States or to citizens thereof is committed or 
threatened, in violation of the principles of international law or treaty rights, 
he shall consult with the diplomatic representative or consul of the United 
States, and take such steps as the gravity of the case demands, reporting imme- 
diately to the Secretary of the Navy all the facts. The responsibility for any ac- 
tion taken by a naval force, however, rests wholly upon the commanding officer 
thereof. 

Article 306. Use of force. The use of force against a foreign and friendly 
State, or against any one within the territories thereof, is illegal. The right of 
self-preservation, however, is a right which belongs to States as well as to indi- 
viduals, and in the case of States it includes the protection of the State, its 
honor, and its possessions, and the lives and property of its citizens against arbi- 
trary violence, actual or impending, whereby the State or its citizens may suffer 
irreparable injury. The conditions calling for the application of the right of 
self-preservation cannot be defined beforehand, but must be left to the sound 
judgment of responsible officers, who are to perform their duties in this respect 
with all possible care and forbearance. In no case shall force be exercised in 
time of peace otherwise than as an application of the right of self-preservation 
as above defined. It must be used only as a last resort, and then only to the 

209 



Forcible Protection of Nationals Abroad 



extent which is absolutely necessary to accomplish the end required. It can 
never be exercised with a view to inflicting punishment for acts already 
committed. 

Article 307. Landing an armed force in foreign territory. Whenever, in the 
application of the above -mentioned principles, it shall become necessary to 
land an armed force in foreign territory on occasions of political disturbance 
where the local authorities are unable to give adequate protection to life and 
property, the assent of such authorities, or of some one of them, shall first be 
obtained, if it can be done without prejudice to the interests involved. 

Article 309. To protect the commerce of the United States. So far as lies 
within their power, Commanders-in-Chief and captains of ships shall protect 
all merchant vessels of the United States in lawful occupations, and advance 
the commercial interests of this country, always acting in accordance with in- 
ternational law and treaty obligations. 

Article 310. Dealings with foreigners. He shall impress upon officers and 
men that when in foreign ports it is their duty to avoid all possible causes of of- 
fense to the authorities or inhabitants; that due deference must be shown by 
them to the local laws, customs, ceremonies, and regulations; that in all deal- 
ings with foreigners moderation and courtesy should be displayed; and that a 
feeling of good will and mutual respect should be cultivated. 30 

Commentary 

These articles of the 1900 and 1905 Regulations are identical to their 1896 
counterparts. 

XIX. United States Navy Regulations (1909) 

A Commander-in-Chief 

Duties in Time of War 

Article 333. To protect and convoy merchant vessels. He shall afford pro- 
tection and convoy, so far as it is within his power, to merchant vessels of the 
United States and to those of allies. 

Article 334. Duties during a war between civilized nations at peace with the 
United States. During a war between civilized nations with which the United 
States is at peace, he and all under his command shall observe the laws of neu- 
trality and respect a lawful blockade, but at the same time make every possible 

210 



Appendix II 



effort that is consistent with the rules of international law to preserve and pro- 
tect the lives and property of citizens of the United States wherever situated. 

Article 335. To observe the principles of international law and treaty obliga- 
tions. When the United States is at war, he shall require all under his command 
to observe the rules oi humane warfare and the principles of international law. 
When dealing with neutrals, he shall cause all under his command to observe 
the rules of international law and the stipulation of treaties, and expect and ex- 
act a like observance from others. 

Article 340. Intercourse with Foreigners. 

1. Territorial authority. He shall exercise great care that all under his com- 
mand scrupulously respect the territorial authority of foreign civilized nations 
in amity with the United States. 

2. No armed force to be landed. No armed force for exercise, target practice, 
funeral escort, or other purposes shall be landed without permission from the 
local authorities; nor shall large bodies of men be granted leave to visit the 
shore without a similar permission; nor shall men be landed to capture 
deserters. 

3. No target practice without permission. Great-gun target practice, even at 
floating targets, shall not take place within foreign territorial waters or at any 
point from which shots may fall therein, without permission. 

Article 341. Violation of international law and treaty obligations. On occa- 
sions where injury to the United States or to citizens thereof is committed or 
threatened, in violation oi the principles of international law or treaty rights, 
he shall consult with the diplomatic representative or consul of the United 
States, and take such steps as the gravity of the case demands, reporting imme- 
diately to the Secretary of the Navy all the facts. The responsibility for any ac- 
tion taken by a naval force, however, rests wholly upon the commanding officer 
thereof. 

Article 342. Use of force. Self-preservation. The use of force against a for- 
eign and friendly State, or against anyone within the territories thereof, is ille- 
gal. The right of self-preservation, however, is a right which belongs to States as 
well as to individuals, and in the case of States it includes the protection of the 
State, its honor, and its possessions, and the lives and property of its citizens 
against arbitrary violence, actual or impending, whereby the State or its citi- 
zens may suffer irreparable injury. The conditions calling for the application o( 
the right of self-preservation cannot be defined beforehand, but must be left to 
the sound judgment of responsible officers, who are to perform their duties in 
this respect with all possible care and forbearance. In no case shall force be ex- 
ercised in time of peace otherwise than as an application of the right of 

211 



Forcible Protection of Nationals Abroad 



self-preservation as above defined. It must be used only as a last resort, and 
then only to the extent which is absolutely necessary to accomplish the end re- 
quired. It can never be exercised with a view to inflicting punishment for acts 
already committed. 

Article 343. Landing an armed force in foreign territory. Whenever in the 
application of the above-mentioned principles it shall become necessary to 
land an armed force in foreign territory on occasions of political disturbance 
where the local authorities are unable to give adequate protection to life and 
property, the assent of such authorities, or of some one of them, shall first be 
obtained, if it can be done without prejudice to the interests involved. 

Article 345. To protect the commerce of the United States. So far as lies 
within their power, Commanders-in-Chief and captains of ships shall protect 
all merchant vessels of the United States in lawful occupations, and advance 
the commercial interests of their country, always acting in accordance with in- 
ternational law and treaty obligations. 

Article 346. Dealings with foreigners. He shall impress upon officers and 
men that when in foreign ports it is their duty to avoid all possible causes of of- 
fense to the authorities or inhabitants; that due deference must be shown by 
them to the local laws, customs, ceremonies, and regulations; that in all deal- 
ings with foreigners moderation and courtesy should be displayed; and that a 
feeling of good will and mutual respect should be cultivated. 31 

Commentary 

The substance of these articles is identical to that of the 1900 and 1905 
Regulations. 

XX. United States Navy Regulations (1913) 

A Commander^m-Chief 

Duties in Time of War 

Article 1632. To protect and convoy merchant vessels. The Com- 
mander-in-Chief shall afford protection and convoy, so far as it is within his 
power, to merchant vessels of the United States and to those of allies. 

Article 1633. Duties during a war between civilized nations at peace with 
the United States. During a war between civilized nations with which the 
United States is at peace, the Commander-in-Chief and all under his command 

212 



Appendix II 



shall observe the laws of neutrality and respect a lawful blockade, but at the 
same time make every possible effort that is consistent with the rules of interna- 
tional law to preserve and protect the lives and property of citizens of the 
United States wherever situated. 

Article 1634. To observe the principles of international law and treaty obli- 
gations. When the United States is at war, the Commander-in-Chief shall re- 
quire all under his command to observe the rules of humane warfare and the 
principles of international law. When dealing with neutrals, he shall cause all 
under his command to observe the rules of international law and the stipula- 
tion of treaties, and expect and exact a like observance from others. 

Article 1645. Intercourse with Foreigners. 

1. Territorial authority. The Commander-in-Chief shall exercise great care 
that all under his command scrupulously respect the territorial authority of for- 
eign civilized nations in amity with the United States. 

2. No armed force to be landed. No armed force for exercise, target practice, 
funeral escort, or other purposes shall be landed without permission from the 
local authorities; nor shall large bodies of men be granted leave to visit the 
shore without a similar permission; nor shall men be landed to capture 
deserters. 

3. No target practice without permission. Target practice with guns or torpe- 
does shall not take place without permission from the government of the coun- 
try concerned within foreign territorial waters or at any point from which shots 
may fall or torpedoes enter therein. 

Article 1646. Violation of international law and treaty obligations. On occa- 
sions where injury to the United States or to citizens thereof is committed or 
threatened, in violation of the principles of international law or treaty rights, 
the Commander-in-Chief shall consult with the diplomatic representative or 
consul of the United States, and take such steps as the gravity of the case de- 
mands, reporting immediately to the Secretary of the Navy all the facts. The re- 
sponsibility for any action taken by a naval force, however, rests wholly upon 
the commanding officer thereof. 

Article 1647. Use of force. Self-preservation. The use of force against a for- 
eign and friendly State or against anyone within the territories thereof, is ille- 
gal. The right of self-preservation, however, is a right which belongs to States as 
well as to individuals, and in the case of States it includes the protection of the 
State, its honor, and its possessions, and the lives and property of its citizens 
against arbitrary violence, actual or impending, whereby the State or its citi- 
zens may suffer irreparable injury. The conditions calling for the application of 
the right of self-preservation cannot be defined beforehand, but must be left to 

213 



Forcible Protection of Nationals Abroad 



the sound judgment of responsible officers, who are to perform their duties in 
this respect with all possible care and forbearance. In no case shall force be ex- 
ercised in time of peace otherwise than as an application of the right of 
self-preservation as above defined. It must be used only as a last resort, and 
then only to the extent which is absolutely necessary to accomplish the end re- 
quired. It can never be exercised with a view to inflicting punishment for acts 
already committed. 

Article 1648. Landing an armed force in foreign territory. Whenever, in the 
application o( the above-mentioned principles, it shall become necessary to 
land an armed force in foreign territory on occasions of political disturbance 
where the local authorities are unable to give adequate protection to life and 
property, the assent of such authorities, or of some one of them, shall first be 
obtained, if it can be done without prejudice to the interests involved. 

2. Due to the ease with which the Navy Department can be communicated 
with from all parts of the world, no Commander-in-Chief, division commander, 
or commanding officer, shall issue an ultimatum to the representative of any 
foreign Government, or demand the performance of any service from any such 
representative that must be executed within a limited time, without first com- 
municating with the Navy Department, except in extreme cases where such 
action is necessary to save life. 

Article 1650. To protect the commerce of the United States. So far as lies 
within their power, Commanders-in-Chief, division commanders, and com- 
manding officers of ships shall protect all merchant vessels of the United States 
in lawful occupations, and advance the commercial interests of this country, al- 
ways acting in accordance with international law and treaty obligations. 

Article 1651. Dealings with foreigners. The Commander-in-Chief shall im- 
press upon officers and men that when in foreign ports it is their duty to avoid 
all possible causes of offense to the authorities or inhabitants; that due defer- 
ence must be shown by them to the local laws, customs, ceremonies, and regu- 
lations; that in all dealings with foreigners moderation and courtesy should be 
displayed, and that a feeling of good will and mutual respect should be culti- 
vated. 32 

Commentary 

Articles 1632, 1633, 1634, 1645, 1646 and 1647 repeat Articles 333, 334, 
335, 340, 341 and 342 of the 1909 Regulations. Article 1648(1) repeats Article 
343 of the 1909 Regulations. Article 1648(2) was added by Change No. 7 of 
September 15, 1916. It takes into account the Navy's use of radio 

214 



Appendix II 



communications. The sentence forbidding ultimatums to foreign governments 
without prior consultation with the Navy Department restricts the right of a 
Commander-in-Chief to apply the self-preservation doctrine. Henceforth, the 
right to self-preservation can be invoked by a Commander-in-Chief, acting on 
his own, only when it is a life-or-death situation calling for immediate action. 

Article 1650 repeats Article 345 of the 1909 Regulations, except that the 
words "division commanders, and commanding officers" are substituted for the 
word "captains." This change reflects organizational growth in the Navy. 

Article 1651 repeats Article 346 of the 1909 Regulations, except that the 
phrase "The Commander-in-Chief is substituted for the pronoun "he," a 
change for clarity's sake only. 

XXI. United States Navy Regulations (1920) 
A Commandeivin'Chief 
Duties in Time of War 

Article 714. To protect and convoy merchant vessels. The Com- 
mander-in-Chief shall afford protection and convoy, so far as it is within his 
power, to merchant vessels of the United States and to those of allies. 

Article 715. Duties during a war between civilized nations at peace with the 
United States. During a war between civilized nations with which the United 
States is at peace, the Commander-in-Chief, and all under his command, shall 
observe the laws of neutrality and respect a lawful blockade, but at the same 
time make very possible effort that is consistent with the rules of international 
law to preserve and protect the lives and property of citizens of the United 
States wherever situated. 

Article 716. To observe the principles of international law and treaty obliga- 
tions. When the United States is at war, the Commander-in-Chief shall require 
all under his command to observe the rules of humane warfare and the princi- 
ples of international law. When dealing with neutrals he shall cause all under 
his command to observe the rules of international law and the stipulation of 
treaties, and expect and exact a like observance from others. 

Article 721. Intercourse with foreigners. 

1. Territorial authority. The Commander-in-Chief shall exercise great care 
that all under his command scrupulously respect the territorial authority of for- 
eign civilized nations in amity with the United States. 

215 



Forcible Protection of Nationals Abroad 



2. No armed force to be landed. No armed force for exercise, target practice, 
funeral escort, or other purposes shall be landed without permission from the 
local authorities; nor shall large bodies of men be granted leave to visit the 
shore without a similar permission; nor shall men be landed to capture 
deserters. 

3. No target practice without permission. Target practice with guns or torpe- 
does shall not take place without permission from the Government of the 
country concerned within foreign territorial waters or at any point from which 
shots may fall or torpedoes enter therein. 

Article 722. Violation of international law and treaty obligations. On occa- 
sions where injury to the United States or to citizens thereof is committed or 
threatened, in violation of the principles o{ international law or treaty rights, 
the Commander-in-Chief shall consult with the diplomatic representative or 
consul of the United States, and take such steps as the gravity of the case de- 
mands, reporting immediately to the Secretary of the Navy all the facts. The re- 
sponsibility for any action taken by a naval force, however, rests wholly upon 
the commanding officer thereof. 

Article 723. Use of force. Self-preservation. The use of force against a for- 
eign and friendly State, or against anyone within the territories thereof, is 
illegal. 

The right of self-preservation, however, is a right which belongs to States as 
well as to individuals, and in the case of States it includes the protection of the 
State, its honor, and its possessions, and the lives and property of its citizens 
against arbitrary violence, actual or impending, whereby the State or its citi- 
zens may suffer irreparable injury. The conditions calling for the application of 
the right of self-preservation cannot be defined beforehand, but must be left to 
the sound judgment of responsible officers, who are to perform their duties in 
this respect with all possible care and forbearance. In no case shall force be ex- 
ercised in time oi peace otherwise than as an application of the right of 
self-preservation as above defined. It must be used only as a last resort, and 
then only to the extent which is absolutely necessary to accomplish the end re- 
quired. It can never be exercised with a view to inflicting punishment for acts 
already committed. 

Article 724. Landing an armed force in foreign territory. 

1 . Whenever, in the application of the above-mentioned principles, it shall be- 
come necessary to land an armed force in foreign territory on occasions of political 
disturbance where the local authorities are unable to give adequate protection to 
life and property, the assent of such authorities, or of some one of them, shall first 
be obtained, if it can be done without prejudice to the interests involved. 



216 



Appendix U 



2. Due to the ease with which the Navy Department can be communicated 
with from all parts of the world, no Commander-in-Chief, flag officer, or com- 
manding officer shall issue an ultimatum to the representative of any foreign 
Government, or demand the performance of any service from any such repre- 
sentative that must be executed within a limited time, without first communi- 
cating with the Navy Department, except in extreme cases where such action 
is necessary to save life. 

Article 726. To protect the commerce of the United States. So far as lies 
within their power, Commanders-in-Chief, division commanders, and com- 
manding officers of ships shall protect all merchant vessels of the United States 
in lawful occupations, and advance the commercial interests of this country, al- 
ways acting in accordance with international law and treaty obligations. 

Article 727. Dealings with foreigners. The Commander-in-Chief shall im- 
press upon officers and men that when in foreign ports it is their duty to avoid all 
possible causes of offense to the authorities or inhabitants; that due deference 
must be shown by them to the local laws, customs, ceremonies, and regulations; 
that in all dealings with foreigners moderation and courtesy should be displayed, 
and that a feeling of good will and mutual respect should be cultivated. 33 

Commentary 

Articles 714, 715, 716, 721, 722, 723, 724, 726 and 727 repeat Articles 1632, 
1633, 1634, 1645, 1646, 1647, 1648, 1650 and 1651 of the 1913 Regulations. 

XX1L United States Navy Regulations (1948) 

Commanders-in-Chief and Other Commanders 

Article 0505. Observance of International Law. 

1. In the event of war between nations with which the United States is at 
peace, a commander shall observe, and require his command to observe, the 
principles of international law. He shall make every effort consistent with those 
principles to preserve and protect the lives and property oi citizens of the 
United States wherever situated. 

2. When the United States is at war, he shall observe, and require his com- 
mand to observe, the principles of international law and the rules of humane 
warfare. He shall respect the rights of neutrals as prescribed by international 
law and by pertinent provisions of treaties, and shall exact a like observance 
from neutrals. 

217 



Forcible Protection of Nationals Abroad 



The Senior Officer Present 

Article 0613. Violations of International Law and Treaties. On occasions 
where injury to the United States or to citizens thereof is committed or threat- 
ened, in violation of the principles of international law or treaty rights, the se- 
nior officer present shall consult with the diplomatic or consular 
representatives of the United States, if possible, and shall take such action as 
the gravity 7 of the situation demands. The responsibility 7 for any action taken by 
a naval force, however, rests wholly upon the senior officer present. He shall 
immediately report all the facts to the Secretary of the Navy. 

Article 0614. Use of Force Against a Friendly State. 

1 . The use of force by United States naval personnel against a friendly for- 
eign State, or against anyone within the territories thereof, is illegal. 

2. The right of self-preservation, however, is a right which belongs to States 
as well as to individuals, and in the case of States it includes the protection of 
the State, its honor, and its possessions, and the lives and property 7 of its citizens 
against arbitrary violence, actual or impending, whereby the State or its citi- 
zens may suffer irreparable injury. The conditions calling for the application of 
the right of self-preservation cannot be defined beforehand, but must be left to 
the sound judgment of responsible officers, who are to perform their duties in 
this respect with all possible care and forbearance. In no case shall force be ex- 
ercised in time o( peace otherwise than as an application of the right of 
self-preservation as above defined. It must be used only as a last resort, and 
then only to the extent which is absolutely necessary to accomplish the end re- 
quired. It can never be exercised with a view to inflicting punishment for acts 
already committed. 

3. Whenever, in the application of the above-mentioned principles, it shall 
become necessary to land an armed force in a foreign territory on occasions of 
political disturbance where the local authorities are unable to give adequate 
protection to life and property 7 , the assent of such authorities, or of some of 
them, shall first be obtained, if it can be done without prejudice to the interests 
involved. 

Article 0620. Protection of Commerce of the United States. So far as lies 
within his power, acting in conformity 7 with international law and treaty 7 obliga- 
tions, the senior officer present shall protect all commercial vessels and aircraft 
of the United States in their lawful occupations, and shall advance the com- 
mercial interests of this country. 



218 



Appendix II 



Article 0622. Territorial Authority of Foreign Nations. 

1. The senior officer present shall, in the exercise of his command, scrupu- 
lously respect the territorial authority of nations in amity with the United 
States. 

2. Unless permission has been obtained from local authorities: 

a. No armed force for exercise, target practice, funeral escort, or other pur- 
poses shall be landed. 

b. No persons shall be allowed to visit the shore, except as necessary to con- 
duct official business. 

c. No men shall be landed to capture deserters. 

3. Target practice with guns, torpedoes, rockets, guided missiles or other 
weapons shall not take place, without permission from the government of the 
country concerned, within foreign territorial waters and at any point from 
which projectiles, torpedoes, or missiles may enter therein. 

Article 0623. Dealings with Foreigners. The senior officer present shall 
uphold the prestige of the United States. He shall impress upon officers 
and men that when in foreign ports it is their duty to avoid all possible 
causes of offense to the authorities or inhabitants; that due deference 
must be shown by them to the local laws, customs, ceremonies, and regula- 
tions; that in all dealings with foreigners, moderation and courtesy should 
be displayed; and that a feeling of good will and mutual respect should be 
cultivated. 34 

Commentary 

Article 0505 restates in substance Articles 715 and 716 of the 1920 Regula- 
tions. The old term "civilized nations" is finally dropped. The phrase was an 
anachronism and had become offensive to many countries by 1948. The phrase 
"principles o{ international law" takes the place of "the laws of neutrality and 
respect a lawful blockade." This change is not significant, since Article 715 had 
mentioned the "rules of international law." In short, Article 0505 reflects the 
same rules that had been used since 1893. 

Article 0613 is a restatement of Article 722 of the 1920 Regulations, with 
minor alterations. "[T]he senior officer present" is substituted for the "Com- 
mander-in-Chief ' in the first sentence. Consultation with diplomatic or con- 
sular representatives is to be had "if possible. . . ." The facts of the problem are 
to be reported to the Secretary of the Navy immediately, as in Article 722, but 
the change in priority is obvious. Again, this article is fundamentally the same 
as its 1893 counterpart. 

219 



Forcible Protection of Nationals Abroad 



Article 0614 repeats in substance Article 723 of the 1920 Regulations. The 
phrase "by United States naval personnel" is inserted in section 1 and the 
words "friendly" and "foreign" are reversed. Section 2 repeats the second para- 
graph of Article 723. Section 3 repeats verbatim Article 724 of the 1920 
Regulations. 

Article 0620 is a close paraphrase of Article 726 of the 1920 Regulations. 
Enforcement is now in the hands of the "senior officer present" and protection 
is extended to "ail commercial vessels and aircraft. ..." Otherwise the article is 
identical to its predecessor. 

Articles 0622 and 0623 repeat the substance of Articles 721 and 727 of the 
1920 Regulations. 

XXIIL United States Navy Regulations (1973) 

Commanders-in-Chief and Other Commanders 

Article 0605. Observance of International Law. At all times a commander 
shall observe, and require his command to observe, the principles of interna- 
tional law. Where necessary to fulfillment of this responsibility, a departure 
from other provisions of Navy Regulations is authorized. 

The Senior Officer Present 

Article 0914. Violations of International Law and Treaties. On occasions 
when injury to the United States or to citizens thereof is committed or threat- 
ened in violation of the principles of international law or in violation of rights 
existing under a treaty or other international agreement, the senior officer 
present shall consult with the diplomatic or consular representatives of the 
United States, if possible, and he shall take such action as is demanded by the 
gravity of the situation. In time of peace, action involving the use of force may 
be taken only in consonance with the provisions of the succeeding article of 
these regulations. The responsibility for any application of force rests wholly 
upon the senior officer present. He shall report immediately all the facts to the 
Secretary of the Navy. 

Article 0915. Use of Force Against Another State. 

1. The use of force in time of peace by United States naval personnel against 
another nation or against anyone within the territories thereof is illegal except 
as an act of self-defense. The right of self-defense may arise in order to counter 
either the use of force or an immediate threat of the use of force. 

220 



Appendix II 



2. The conditions calling for the application of the right of self-defense can- 
not be precisely defined beforehand, but must be left to the sound judgment of 
responsible naval personnel who are to perform their duties in this respect with 
all possible care and forbearance. The right of self-defense must be exercised 
only as a last resort, and then only to the extent which is absolutely necessary to 
accomplish the end required. 

3. Force must never be used with a view to inflicting punishment for acts al- 
ready committed. 

Article 0916. Territorial Integrity of Foreign Nations. The senior officer 
present shall respect the territorial integrity of foreign nations. Unless permis- 
sion has been obtained from foreign authorities: 

a. No armed force for exercise, target practice, funeral escort, or other pur- 
poses shall be landed. 

b. No persons shall be allowed to visit the shore, except as necessary to con- 
duct official business. 

c. No men shall be landed to capture deserters. 

d. No target practice with guns, torpedoes, rockets, guided missiles or other 
weapons shall be conducted within foreign territorial waters or at any point 
from which projectiles, torpedoes or missiles may enter therein. 

Article 0917. Dealings with Foreigners. The senior officer present shall up- 
hold the prestige of the United States. He shall impress upon officers and men 
that, when in foreign ports, it is their duty to avoid all possible cause of offense 
to the authorities and inhabitants; that due deference must be shown by them 
to local laws, customs, ceremonies, and regulations; that moderation and cour- 
tesy should be displayed in all dealings with foreigners; that a feeling of good 
will and mutual respect should be cultivated. 

Article 0920. Protection of Commerce of the United States. Acting in con- 
formity with the international law and treaty obligations, the senior officer 
present shall protect, insofar as lies within his power, all commercial craft of the 
United States in their lawful occupations; and he shall advance the commer- 
cial interests of this country. 35 

Commentary 

Article 0605 is a rough paraphrase of Article 0505 of the 1948 Regulations. 
Its thrust, however, is somewhat different. By deleting the sentence exhorting 
the commander "to preserve and protect the lives and property of citizens of 
the United States wherever situated," the Article becomes less self-serving and 
appears to place primary emphasis upon observance of the principles of 

221 



Forcible Protection of Nationals Abroad 



international law. Further evidence of this shift in emphasis is the statement 
that the commander is authorized to ignore other provisions of Navy Regula- 
tions where necessary for the fulfillment of his general responsibility to observe 
the principles of international law. Thus, the effect of the article is to make 
more explicit the subordination of Navy Regulations to the principles of inter- 
national law. 

The administrative history of this article clearly establishes that such subor- 
dination was the drafter's intent. 

The first sentence [of Article 0605] is a simple and straight forward statement 
reflecting the traditional Navy position with regard to international law. The 
second sentence provides necessary flexibility in those areas where a convention 
or treaty ratified by the United States might make other specific Navy 
Regulations inapplicable or inappropriate in a given circumstance. Because the 
present world situation is one in which rules in the international arena change so 
rapidly, and because the United States often takes a leading role in these 
changes, it is felt that flexibility is necessary in this general article. 36 

The second paragraph of Article 0505 was deleted from the 1973 Regula- 
tions "to make clear that Commanders shall observe international law" at all 
times. The 1973 revisers felt that "as currently phrased, [Article 0505] might 
support an interpretation which restricts the application of international law to 
situations of war or armed conflict." They correctly pointed out that "certainly 
this is true and has never been the Navy position." 37 

Article 0914 restates in substance Article 0613 of the 1948 Regulations. 
The only substantial change made is the insertion of a sentence emphasizing 
that in time of peace action involving the use of force is proscribed except in 
self-defense, as described in Article 0915. 

Article 0915, defining the criteria by which a commander may be justified in 
the use of force in self-defense, roughly parallels Article 0614 of the 1948 Regu- 
lations. However, both the language and the thrust of the article have been al- 
tered somewhat. The more modern phrase "self-defense" is substituted for that 
of "self-preservation." The 1973 Regulation states that the right of self-defense 
"may arise in order to counter either the use of force or an immediate threat of 
the use of force." The 1948 Regulation states a much broader rationale, includ- 
ing "the protection of the State, its honor, and its possessions, and the lives and 
property of its citizens against arbitrary violence, actual or impending, whereby 
the State or its citizens may suffer irreparable injury." The deletion in the 1973 
Regulation of language specifically authorizing the forcible protection of the 
lives and property o( US nationals abroad indicates that the circumstances 

222 



Appendix II 



under which a commander may justifiably resort to force for such purposes are 
greatly restricted today. 

The administrative history clearly indicates that the above changes were de- 
signed to bring the regulations into conformity with contemporary interna- 
tional law. Article 0614.1, Navy Regulations 1984, according to the drafters, 

discusses restraints on the use of force against a friendly State. It could be viewed 
by implication then that there are no prohibitions on the use of force against an 
unfriendly State. Such a distinction has no foundation in international law. 38 

Further, the drafting history refers to the applicable provisions of the UN 
Charter and to Security Council practice prescribing the permissible uses o( 
force as the basis for these revised articles. 

Article 0916 is a modernization of Article 0622 of the 1948 Regulations. 
The first sentence of Article 0916 is based on Article 0622, section 1. Respect 
for the territorial integrity of foreign nations is now properly extended to all na- 
tions, and is no longer limited by implications to those nations "in amity with 
the United States." Such was the drafters' intent: 

[Article 0622, section 1] contains a phrase limiting the article's general 
applicability to nations "in amity" with the United States. Such a grammatical 
construction could lead to the interpretation that the principles of this article do 
not apply to nations not in amity with the United States. This view is 
inconsonant with international law and the view of the United States. 39 

In the second sentence of Article 0916, "foreign" has been substituted for 
"local" to make clear just whose permission is required to do the subsequently 
listed acts. Subparagraphs a, b and c are duplicates of Article 0622, section 2, 
subparagraphs a, b and c of the 1948 Regulations. Subparagraph d is based on 
Article 0622, section 3, only grammatical changes have been made. 

Article 0917, other than a minor repositioning of words in the penultimate 
clause, is almost a verbatim copy of Article 0623 of the 1948 Regulations. 

Article 0920 restates in substance Article 0620 of the 1948 Regulations. 
The thrust of both articles is identical. 

XXIV. United States Navy Regulations (1990) 

Commanders-in-Chief and Other Commanders 

Article 0705. Observance of International Law. At all times, commanders 
shall observe, and require their commands to observe, the principles of 

223 



Forcible Protection of Nationals Abroad 



international law. Where necessary to fulfill this responsibility, a departure 
from other provisions of Navy Regulations is authorized. 

The Senior Officer Present 

Article 0914- Violations of International Law and Treaties. On occasions 
when injury to the United States or citizens thereof is committed or threatened 
in violation o{ the principles of international law or in violation of rights exist- 
ing under a treaty or other international agreement, the senior officer present 
shall consult with the diplomatic or consular representatives of the United 
States, if possible, and shall take such action as is demanded by the gravity of 
the situation. In time of peace, action involving the use of force may be taken 
only in consonance with the provisions of the succeeding article of these regu- 
lations. The responsibility for any application of force rests wholly upon the se- 
nior officer present. The senior officer present shall report immediately all the 
facts to the National Command Authority, keeping the operational chain of 
command and the Secretary of the Navy informed. 

Article 0915. Use of Force Against Another State. 

1. The use of force in time of peace by United States naval personnel against 
another nation or against anyone within the territories thereof is illegal except 
as an act o( self-defense. Naval personnel have a right of self-defense against 
hostile acts or hostile intent (imminent threat to use force) . This right includes 
defending themselves, their subunits and, when appropriate, defending US cit- 
izens, their property and US commercial assets in the vicinity. 

2. The conditions calling for application of the right of self-defense cannot 
be precisely defined beforehand, but must be left to the sound judgment of re- 
sponsible naval personnel who are to perform their duties in this respect with 
all possible care and forbearance. The use of force must be exercised only as a 
last resort, and then only to the extent which is absolutely necessary to accom- 
plish the end required. 

3. Force must never be used with a view to inflicting unlawful punishment 
for acts already committed. 

Article 0916. Territorial Integrity of Foreign Nations. The senior officer 
present shall respect the territorial integrity of foreign nations. Unless permis- 
sion has been obtained from foreign authorities: 

a. No armed force for exercise, target practice, funeral escort or other pur- 
pose shall be landed. 

b. No persons shall be allowed to visit the shore, except as necessary to con- 
duct official business. 

224 



Appendix II 



c. No persons shall be landed to capture deserters. 

d. No target practice with guns, torpedoes, rockets, guided missiles or other 
weapons shall be conducted within foreign territorial waters or at any point 
from which projectiles, torpedoes or missiles may enter therein. 

Article 0917. Dealings with Foreigners. The senior officer present shall up- 
hold the prestige of the United States. He or she shall impress upon officers and 
enlisted personnel that, when in foreign ports, it is their duty to avoid all possi- 
ble cause for offense to the authorities and inhabitants; that due deference 
must be shown by them to local laws, customs, ceremonies and regulations; 
that moderation and courtesy should be displayed in all dealings with foreign- 
ers; and that a feeling of good will and respect should be cultivated. 

Article 0920. Protection of Commerce of the United States. Acting in con- 
formity with international law and treaty obligations, the senior officer present 
shall protect, insofar as lies within his or her power, all commercial craft of the 
United States in their unlawful occupations. 40 

Commentary 

Article 0705 is a nearly verbatim repetition of Article 0605 of the 1973 Reg- 
ulations, the only difference being the substitution of the pronoun "their" for 
the pronoun "his." Similar changes in the interest of gender neutrality, made 
throughout the 1990 regulations, will not be mentioned below. 

Article 0914 repeats in substance Article 0914 of the 1973 regulations. Un- 
der the 1990 Article, the senior officer present reports to the "National Com- 
mand Authority, keeping the operational chain of command and the Secretary 
of the Navy informed." The 1973 Article requires a report only to the Secretary 
of the Navy. 

Article 0915 includes a broader description of the right to use force as an act 
of self-defense than was found in Article 0915 of the 1973 Regulations. Under 
the 1990 Regulations, "[n]aval personnel have a right of self-defense against 
hostile acts or hostile intent (imminent threat to use force)," while under the 
1973 Regulations the right "may arise in order to counter either the use of force 
or an immediate threat of the use of force." Further, under the 1990 Regula- 
tions, naval personnel may defend "themselves, their subunits and, when ap- 
propriate, . . . US citizens, their property and US commercial assets in the 
vicinity." In comparison, Article 0915 in the 1973 Regulations does not define 
the ambit of the right of self-defense. 

Articles 0916 and 0917 are exact replicas of Articles 0916 and 0917, respec- 
tively, in the 1973 regulations. 

225 



Forcible Protection of Nationals Abroad 



Article 0920 omits the requirement that the senior officer present "shall ad- 
vance the commercial interests of this country" but is otherwise a verbatim rep- 
etition of Article 0920 in the 1973 regulations. 

Summary 

In summary, it can be seen that for nearly a century — between 1893 and 
1973 — the Navy Regulations governing the use of force to protect US nation- 
als and their property abroad remained virtually unchanged. With the promul- 
gation of the 1973 Regulations, however, a shift in attitude toward the use of 
forcible self-help in such cases is evident. Omission of phrases relating directly 
to the protection of nationals, as well as the inclusion of positive statements re- 
lating to the supremacy of international law, indicate that the type of 
interventional practice sanctioned by prior regulations no longer passes mus- 
ter. The 1990 Regulations make no change in this regard. Just what measures 
of forcible self-help to protect nationals abroad remain permissible today is a 
controversial question, upon which it is hoped Chapters IV and V have shed 
some light. 

NOTES 

1. See Woods, US Navy Regulations, International Law, and the Organization of 
American States, 22 Naval War College Rev. 66 (Feb. 1970). 

2. See Chapter I. See also Woods, supra note 1, at 74-76. 

3. See generally A. Bozeman, The Future of Law in a Multicultural World (1971). 

4. For a pre-1973 discussion of ways to update US Navy Regulations in this area, see 
Woods, supra note 1, at 80-81. 

5. Admiral Strauss notes that the 1775 Rules for the Regulation of the Navy of the United 
Colonies of North America, "were in the main based on the Regulations and Instructions 
Relating to His Majesty's Service at Sea (1772) and on An Act Relating to the Government of 
His Majesty's Ships . . . Vessels, and Forces by Sea (1749)." Admiral Strauss further states that 
"[e]ntire articles from these were taken verbatim; others were converted only to the extent that 
American political philosophy demanded; a few, but very few, were original." See Rules for the 
Regulation of the Navy of the United Colonies, Introductory Note, Naval Historical Foundation 
Reprint Series I, No. 1. 

6. US Const, art. I, § 8. 

7. Bolander, A History of Regulations in the United States Navy, 73 US Naval Institute 
Proceedings 1355, 1360(1947). 

8. Actofjuly 14, 1862, ch. 164, §5, 12Stat.565 (1862) (codified as amended at 10 USC. § 
6011 (1988)). 

9. In 1981, Congress struck the words "with the approval of the President" from 10 USC. 
§ 601 1 (1988), leaving with the Secretary of the Navy sole authority to issue the regulations. 
See id. 

226 



Appendix 11 



10. Regulations and Instructions Relating to His Majesty's Service at Sea, established by His 
Majesty in Council 2-3, 33, 34 (11th ed. London 1772). 

11. Rules for the Regulation of the Navy of the United Colonies of North America 6 (1775); 
3 Journals of the Continental Congress 1774-1789, at 380-81 (Ford ed. 1905). 

12. See note 5 supra. 

13. Act of March 2, 1799, ch. 24, § 1, 1 Stat. 711. 

14. An Act for the better government of the Navy of the United States, Apr. 23, 1800, ch. 
33, § 11, 2 Stat. 53 (1856). 

15. Naval Regulations issued by Command of the President of the United States of America, 
January 25, 1802, at 3, 10 (date and place of publication unknown). 

16. Naval Regulations, issued by command of the President of the United States of America 
3, 9 (Washington, 1814). 

17. Rules, Regulations and Instructions for the Naval Service of the United States 14, 29 
(Washington, 1818). 

18. "Rules, Regulations, and Instructions, for the Naval Service of the United States," in 
Letter from the Secretary of the Navy, at 20, 37 (Washington, 1821). 

19. General Regulations for the Navy and Marine Corps of the United States, 1841, at 45 
(Washington, 1841). 

20. Orders and Instructions for the Direction and Government of the Naval Service of 
the United States, and for the Exposition of the Duties and Relations of Officers and Men 
in the several branches thereof 70-71 (Washington, 1853) (ruled "destitute of legal 
validity or effect" by the Attorney General on April 5, 1853, 6 Op. Atty Gen. 10, 19 
[1856]). 

21. "A Code of Regulations for the Government of the Navy," in Annual Report of the 
Secretary of the Navy, at 78 (Washington, 1858). This Code was prepared and laid before 
Congress for its approval pursuant to the Act of March 3, 1857, ch. Ill, §7, 11 Stat. 247 (1859). 
Such approval never was given. See Bolander, supra note 7, at 1360. 

22. Regulations for the Navy of the United States, 1863, 55, 60-61 (Washington, 1863). 

23. Regulations for the Government of the United States Navy, 1865, at 56, 62 
(Washington, 1865). 

24- Regulations for the Government of the United States Navy, 1868, at 7, 18-19 
(Washington, 1869). 

25. Regulations for the Government of the United States Navy, 1870, at 7, 11-12, 28 
(Washington, 1870). 

26. Regulations of the Government of the Navy of the United States, 1876, at 25, 27, 30, 
35-36 (Washington, 1877). 

27. Regulations for the Government of the Navy of the United States, 1893, at 65, 67-68 
(Washington, 1893), as amended, US Navy Regulation Circular No. 13 (Aug. 15, 1894). 

28. Other authorities have dealt at length with the changes in international law and 
practice between 1893 and recent times, especially as they affected the meaning of the 
regulations. See Woods, note 1 supra. See also Hallo, The Legal Use of Force . . . Short of War, 92 
US Naval Institute Proceedings 88 (1966). 

29. Regulations for the Government of the Navy of the United States, 1896, at 64, 65-66 
(Washington, 1896). 

30. Regulations for the Government of the Navy of the United States, 1900, at 75, 76-77 
(Washington, 1900) and Regulations for the Government of the Navy of the United States, 
1905, at 75, 76-77 (Washington, 1905). 



227 



Forcible Protection of Nationals Abroad 



31. Regulations for the Government of the Navy of the United States, 1909, at 85, 86-87 
(Washington, 1909). 

32. Regulations for the Government of the Navy of the United States (Navy Regulations), 
1913, at 161R, 162R-163R (Washington, 1913), as amended, Change No. 7 of September 15, 
1916. 

33. United States Navy Regulations, 1920, at 219, 220-22 (Washington, 1920). 

34. United States Navy Regulations, 1948, at 66, 73, 74 (Washington, 1948). 

35. United States Navy Regulations, 1973, at 11, 28, 39 (Washington, 1973). 

36. Office of the Judge Advocate General of the Navy, Memorandum from International 
Law Division to Administrative Law Division, JAG: 102, para. 2 (Sep. 9, 1970). 

37. Id. 

38. Id. at para. 8 (emphasis in original). 

39. Id. at para. 10. 

40. United States Navy Regulations, 1990, at 39-40, 71-72 (Washington, 1990). 



228 



Conclusion 



At the time of his death, Professor Lillich's manuscript was lacking only a 
concluding statement of the contemporary law governing the forcible protection 
of nationals abroad. Although we were determined to present his work without 
substantive alteration, we did want this volume to be as comprehensive as 
possible. An editorial consensus emerged that we should append a chapter as a 
complementary snapshot of the law as it exists today. The following article, 
written by a co-editor of this volume and originally published in the Dickinson 
Law Review in the Spring of 2000, fit the bill. It is reproduced here with the kind 
permission of The Dickinson Law School of The Pennsylvania State University."*" 
We hope that it is an appropriate punctuation mark for Professor Lillich's 
research and analysis, and that it may serve as a point of departure for those 
scholars who will build on his impressive body of work 

Forcible Protection of Nationals Abroad 
Thomas C. Wingfield 

"It was only one life. What is one life in the affairs of a state?" 

— Benito Mussolini, after running down a child in his automobile (as reported by Gen. 

Smedley D. Butler in address, 193 1) 1 

"This Government wants Perdicaris alive or Raisuli dead." 
— Theodore Roosevelt, committing the United States to the protection of Ion 
Perdicaris, kidnapped by Sherif Mulai Ahmed ibn-Muhammed er Raisuli (in State 
Department telegram, June 22nd, 1 904) 2 



t Thomas C. Wingfield, Forcible Protection of Nationals Abroad, 104 DICK. L. REV. 493 (2000). 
Reproduced with permission of the copyright owner, The Dickinson School of Law of The 
Pennsylvania State University. 



Forcible Protection of Nationals Abroad 



Introduction 

As the two epigraphs above demonstrate, perhaps the best criterion for 
discriminating tyrannies from democracies is the sincere, proven emphasis 
placed upon the value of a single human life. The forcible protection of 
nationals abroad, when undertaken by a sovereign for non-pretextual reasons, 
is the clearest expression of that distinction in state practice. The academic 
challenge in evaluating such uses of force is to distinguish such protection from 
other legitimate uses oi force, and then to distinguish these uses from other, 
illegitimate uses of force. Such an examination is heavily dependent upon the 
historical context of the threat, and of the acting state. For, as the Rev. Jesse 
Jackson has stated, "a text without a context is a pretext." 3 

To properly understand the "text" involved, it is important to have as clear a 
definition as possible. Arend and Beck define "protection of nationals" as "the 
use of armed force by a state to remove its nationals from another state where 
their lives are in actual or imminent peril." 4 Arend and Beck add four qualifica- 
tions to this definition. First, consent obviates the analysis, rendering the oper- 
ation something other than coercion or intervention. 5 Second, the threatened 
nationals need not be within the territory of the threatening state, merely 
within its exclusive jurisdiction. The classic example of this would be a rescue 
from a ship flying the threatening state's flag. 6 Third, a Chapter VII authoriza- 
tion would, like consent of the territorial state, obviate the analysis. Assuming 
the Security Council is not acting ultra vires, a use of force pursuant to such an 
authorization is almost by definition lawful. 7 Fourth, and finally, an interven- 
tion to protect the citizens of the threatening state is a humanitarian interven- 
tion, not the protection of nationals abroad. While the primary discriminator is 
the nationality of the victims rescued, the dimensions of the two types of inter- 
vention can vary significantly. The use of force in the protection of nationals 
abroad is, at its most pure, a rescue operation, lasting no longer than the evacu- 
ation itself. Humanitarian intervention, on the other hand, can involve 
lengthy nation-building or even government-replacement in the territorial 
state. 8 A lengthier, but more precise, definition would then read: "the use or 
threat of imminent use of armed force by a state to safeguard, and usually re- 
move, its nationals from the territory or exclusive jurisdiction of another state, 
without the consent of that state or the authorization of the UN Security 
Council, where the lives of those nationals are in actual or imminent peril." 

This article will briefly examine the historical foundation for the forcible 
protection of nationals abroad, recount a number of post-Charter uses of force 

230 



Conclusion 



to protect nationals, describe and evaluate alternate modern theories support- 
ing such actions, and conclude with a description of the law today. 

Historical Development 

While an exhaustive historical review of the legality of the use of force in the 
protection of nationals could consume several volumes, the views of three pub- 
licists provide a firm basis for the subsequent, principally post-Charter analysis. 

Vattel wrote what is perhaps the seminal paragraph on the protection of 
nationals: 

Whoever offends the State, injures its rights, disturbs its tranquility, or does it a 
prejudice in any manner whatsoever, declares himself its enemy, and exposes 
himself to be justly punished for it. Whoever uses a citizen ill, indirectly offends 
the State, which is bound to protect this citizen; and the sovereign of the latter 
should avenge his wrongs, punish the aggressor, and, if possible, oblige him to 
make full reparation; since otherwise the citizen would not obtain the great end 
o( the civil association, which is, safety. 9 

The justification for intervention in such a case is more than just a right; it 
becomes a duty of the sovereign. The duty, however, is tempered by a respect 
for the sovereignty of other nations: 

The prince . . . ought not to interfere in the causes of his subjects in foreign 
countries, and grant them protection, excepting in cases where justice is refused, 
or palpable and evident injustice done, or rules and forms openly violated, or, 
finally, an odious distinction made, to the prejudice of his subjects, or of 
foreigners in general. 10 

This duty, and this tension, has been echoed by all subsequent thoughtful 
commentators. 

Hall, writing at the end of the 19 th Century, returned to the fundamental 
nature of this duty: "At the root of state life lies the circumstance that the 
bond which exists between a state and its subjects is not severed when the 
latter issue from the national territory." 11 However, Hall adds with British 
understatement, "the clashing laws of states of European civilization still 
place many persons in situations that are frequently difficult and occasionally 
serious." 12 It is at this point that the sovereign's duty to protect his subject 
emerges: 

231 



Forcible Protection of Nationals Abroad 



The duty of protection is correlative to the rights of a sovereign over his subjects; 
the maintenance of the bond between a state and its subjects while they are 
abroad implies that the former must watch over and protect them with in the due 
limit of the rights of other states. ... It enables governments to exact reparation 
for oppression they have suffered, or for injuries done to them otherwise than by 
process of law; and it gives the means of guarding them against the effect of 
unreasonable laws, laws totally out of harmony with the nature and degree of 
civilization by which a foreign power affects to be characterized, and finally of an 
administration of laws bad beyond a certain point. When in these directions a 
state grossly fails in its duties; when it is either incapable of ruling, or rules with 
patent injustice, the right of protection emerges in the form of diplomatic 
remonstrance, and in extreme cases of ulterior measures. 13 

The nature and extent of these "ulterior measures" were principally a British 
concern in the 19 th Century, but became an American concern early in the 20 th 
Century, as the United States Navy and Marine Corps extended America's 
ability to respond to "laws bad beyond a certain point." 

Borchard, an American writing early in the 20 th Century, addresses with 
textbook matter-of-factness the use of such force in the protection of nationals 
abroad: 

The display of force and the threat to use it . . . have frequently proved an 
effective means of obtaining redress .... This display of force usually takes the 
form of a national war-ship appearing before the port of the foreign country 
alleged to be in default. The moral influence exerted by the presence of a war 
vessel is great, and ... in quarters of the world subject to frequent domestic 
disorder has served not only to prevent an abuse of aliens' rights, particularly of 
the nationals of the country to which the vessel belongs. 14 

Although such displays were frequently effective, they occasionally escalated 
to actual uses of force: 

The army or navy has frequently been used for the protection of citizens or their 
property in foreign countries in cases of emergency where the local government 
has failed, through inability or unwillingness, to afford adequate protection to 
the persons or property of the foreigners in question. 15 . . . The occasions on 
which troops have been landed have varied, although it has always been under 
circumstances where the protective faculties of the local government have been 
so weakened that the security of aliens, particularly nationals of the interfering 
state, seemed so precarious that some measure of self-help was deemed 
necessary. 16 . . . While the landing of troops in the cases above mentioned has 

232 



Conclusion 



been purely protective, they have not always been able to avoid belligerent 
operations to effect their purpose. 17 

Vattel, Hall, and Borchard describe a legal regime which existed from the 
early 17 th Century until the middle of the 20 th Century. It was only with the en- 
try into force of the U.N. Charter that an entirely new analytical framework 
was put into place, ostensibly outlawing the aggressive use of force, but preserv- 
ing the "inherent" right of self-defense. Although centuries of state practice 
were not entirely irrelevant, future uses of force to protect nationals abroad 
would have to be justified within the new Charter paradigm. 

The first step in understanding this new framework is to review the signifi- 
cant uses of force in the Charter era (post- 1945), providing the factual back- 
ground for testing theory and examining state practice. 

Uses of Force in the Charter Era 

United Kingdom Threatens Intervention in Iran — 1946 

When rioting broke out in Iran in the summer of 1946, less than a year after the 
Charter had entered into force, the British government was concerned for the 
safety of British residents working for the Anglo-Iranian Oil Company. With 
the permission of the Iraqi government, 18 Britain dispatched a contingent of 
troops to Basra, Iraq, near the Iranian border. The U.K. also ordered two 
warships to anchor off Basra. They did this "in order that they may be at hand 
for the protection, should the circumstances demand it, of Indian, British and 
Arab lives, and in order to safeguard Indian and British interests in South 
Persia, troops are being sent from India to Basra." 19 The rioting subsided, and 
no entry was necessary. The Iranian government still protested the threat of 
force as a violation of Article 2 (4) of the UN Charter and an infringement of 
Iranian sovereignty. 20 Britain responded that it would have intervened in case 
of a "grave emergency," 21 that is, if the Iranian government had been unable or 
unwilling to protect the lives of British residents. 

Second Threat of Intervention in Iran by U.K. — 1 95 1 

The Iranian government precipitated another crisis when it nationalized the 
Anglo-Iranian Oil Company in 1951. The British government once again 
feared that the heightened tensions between the two countries might put 
British residents in Iran at risk. Accordingly, the U.K. dispatched several 
warships to Iraqi waters, and deployed a number of combat aircraft to British 
bases within Iraq. 22 British policy statements on the move were unusually clear 

233 



Forcible Protection of Nationals Abroad 



and to the point. Foreign Secretary Morrison stated that Britain had "every 
right and indeed the duty to protect British lives." 23 He went on to elaborate 
before the House of Commons: 

As I have repeatedly informed the House, His Majesty's government are not 
prepared to stand idly by if the lives of British nationals are in jeopardy. It is the 
responsibility of the Persian government to see to it that law and order are 
maintained and that all within the frontiers of Persia are protected from 
violence. If, however, that responsibility were not met it would equally be the 
right and duty of His Majesty's government to extend protection to its own 
nationals. 24 

Iran, on the other hand, saw the positioning of air and naval forces just outside 
its own borders as a threat of force unwarranted by the situation. Iran stated 
that the U.K. had no right to "intimidate" Iran, 25 and that Iran was "completely 
the master of the situation." 26 Iran took this policy position one step further, 
and declared before a meeting of the Sixth Committee of the UN General 
Assembly that even if British nationals had been mistreated, any action to 
intervene and protect them could not be justified as a lawful exercise of 
self-defense. 

The Cairo Riots— 1952 

A more subtle response to a more serious threat occurred in January, 1952, 
when large-scale rioting broke out in Cairo. This time, British property was 
damaged and British lives were lost. 28 In response, the U.K. developed a 
contingency plan to use its troops in the Suez Canal zone to move in to Cairo 
and Alexandria to protect endangered British residents. 29 The British 
government communicated its willingness to take action in a diplomatic note 
on January 27 th , stating that it held the government of Egypt fully responsible 
for all damage to British property and any threat to the safety of British 
residents in Egypt. Further, the note warned, the U.K. reserved the right to 
take whatever action was required to safeguard the lives and property of its 
nationals. 30 The note had the desired effect, and the previously quiescent 
Egyptian army moved in to put down the rioters. Then-Foreign Secretary Eden 
explained, "the belief that we had the forces and the conviction that we were 
prepared to use them were powerful arguments in prodding the Egyptian army 
to quell the riots." 31 



234 



Conclusion 



Anglo-French Intervention in Egypt in 1 956 (the Suez Crisis) 
Fearing that their nationals were threatened by Israeli-Egyptian war in 
October, 1956, Britain and France made a series of diplomatic entreaties for 
the belligerents to cease hostilities. When this course failed, the British and the 
French bombed Egyptian airstrips near the Suez Canal and, four days later, 
inserted a contingent of troops to occupy key points along the canal. While 
France emphasized other rationales, Britain relied heavily on the right to 
protect its own citizens abroad. 32 The British Representative to the UN, 
speaking before the Security Council, said: 

In Egypt there are many thousands of British and French nationals. The chain of 
events which began with the Israel [sic] moves into Egypt has developed into 
hostilities and hostilities have created a disturbed situation. In those 
circumstances, British and French lives must be safeguarded. I again emphasize 
. . . that we should certainly not want to keep any forces in the area for one 
moment longer than is necessary to protect our nationals. 33 

Then-Prime Minister Eden stated before the House of Commons that "there is 
nothing ... in the Charter which abrogates the right oi a Government to take 
such steps as are essential to protect the lives of their citizens." 34 He went on to 
explain that, when the Security Council was paralyzed by a veto (as it was in 
this case), that states had the right to intervene "in an emergency," to protect 
the lives of nationals abroad. 3 He added that this right was based on the 
inherent Article 5 1 right to self-defense, 36 and that this right could be exercised 
anticipatorily — that is, the injured state need not first receive the equivalent of 
an armed attack against its citizens before moving preemptively against the 
threat. 37 

Foreign Secretary Lloyd outlined three criteria for the lawful exercise of the 
right of protection of nationals abroad within the larger right of self-defense: 
first, that the nationals of the intervening state be under "an imminent threat 
of injury;" second, that there is a "failure or inability" by the local sovereign to 
protect foreign citizens; and third, that the action of the intervening state be 
"strictly confined to the object of protecting the nationals against injury." 38 

Finally, the Lord Chancellor, before the House of Lords, stated that "self- 
defence undoubtedly includes a situation in which the lives of a State's nationals 
abroad are threatened and it is necessary to intervene on that territory for their 
protection." 39 

In addition to this rationale, the British and the French also pursued the mil- 
itary operation to maintain international freedom of navigation through the 

235 



Forcible Protection of Nationals Abroad 



canal, and to stop hostilities between Egypt and Israel. 40 The problem of over- 
lapping justifications will reappear frequently in state practice. 

The Belgian Intervention in the Congo — 1960 

Immediately upon declaring its independence from Belgium in July 1960, the 
Congo's army mutinied and touched off a week of rioting, looting, and 
atrocities against foreign nationals. 41 As the Congolese government was 
completely unable to maintain order, Belgium ordered a contingent of 
paratroopers already in the Congo to protect Belgian and other threatened 
foreign nationals. 42 Before the Security Council, the Belgian Ambassador to 
the UN stated that his government had "decided to intervene with the sole 
purpose of ensuring the safety of European and other members of the 
population and of protecting human lives in general." 43 This rationale mixes 
pure self-defense (protecting a state's own nationals), collective self-defense 
(protecting other foreign nationals within another state), and humanitarian 
intervention (protecting the citizens of the threatened state) . 

In Security Council debate, France argued that the Belgian troops' "mission 
of protecting lives and property is the direct result of the failure of the Congo- 
lese authorities and is in accord with a recognized principle of international 
law, namely, intervention on humanitarian grounds." 44 Argentina based its 
support of the Belgian intervention not on the legality of self-defense, but on 
the moral imperative of the situation: 

Now, we are convinced that the protection of the life and honour of individuals 
is a sacred duty to which all other considerations must yield. We cannot reproach 
the Belgian government for having assumed this duty when Belgian nationals 
were in danger. Any other State would have done the same thing. 45 

The United States was more guarded in its statements, and urged that Bel- 
gium should withdraw once the UN had provided military forces to stabilize the 
situation. In an interesting gloss on the doctrine of humanitarian intervention, 
Belgium actually adopted the U.S. position in a statement that is a model of 
concise legal advocacy: Belgium would withdraw "its intervening troops as 
soon as, and to the extent that, the United Nations ensures the maintenance of 
order and the safety of persons." 46 

United States Intervention in the Dominican Republic — 1965 

In April, 1965, the Constitutional Party forced the resignation of Dominican 

President Reid Cabral. Cabral's National Reconstruction Government 

236 



Conclusion 



immediately organized to regain control of the country. By the end of the 
month, the situation was sufficiently out of hand that the United States felt 
compelled to land 400 Marines to evacuate American citizens and other 
foreign nationals from the country. 47 According to U.S. Ambassador to the UN 
Adlai Stevenson, 

In the absence of any governmental authority, Dominican law enforcement and 
military officials informed our Embassy that the situation was completely out of 
control, that the police and the Government could no longer give any guarantee 
concerning the safety of Americans or of any foreign nationals, and that only an 
immediate landing of United States forces could safeguard and protect the lives 
of thousands of Americans and thousands of citizens of some thirty other 
countries. 48 

This introduces a hybrid form of invitation — less than the pure consent 
rendered by an invitation from the de jure sovereign, but more than a simple, 
unilateral decision to intervene based on an external analysis of the situation. 
The warnings and requests of mid-to-high level officials of the defeated but 
arguably still lawful government fall squarely within this gray area. While this 
type of request does not forestall a legal analysis of the grounds for intervening 
(as would an invitation from the sovereign) , it does add weight to the factual 
arguments establishing the state of chaos in a country, and therefore helps 
weed out instances of purely pretextual intervention. 

However valid the basis for forcible protection of nationals may have been at 
the outset, U.S. involvement quickly escalated and policy diversified. The 
number of troops increased, their stay in-country was extended, and subse- 
quent government statements announced that the United States was acting to 
prevent the establishment of a second communist government in the Western 
Hemisphere. 49 To no one's surprise, Britain supported the initial deployment, 
France was ambivalent, and Cuba was opposed. 50 

The Mayaguez Incident — 1975 

On May 12 th , 1975, Cambodia seized an American merchant ship. Cambodia 
claimed the Mayaguez was in its territorial waters, and on a spy mission. The 
United States insisted that the ship had been in international waters at the 
time of its seizure, and that it had not been on a spy mission. On May 13 th , the 
U.S. demanded she be released within 24 hours. Cambodia did not comply, so 
the United States launched an airstrike against the facility at which it was 
being held. The Cambodians still did not comply, so on May 14 th , the U.S. 

237 



Forcible Protection of Nationals Abroad 



mounted a heliborne Marine infantry assault against the ship. This did achieve 
the desired result, and the ship and crew were freed. 51 

Between the airstrike on the 13 th and the assault on the 14 th , the U.S. re- 
quested the assistance of the Secretary General of the UN in securing the re- 
lease of the ship. In the request, the U.S. reserved the right to take "such 
measures as may be necessary to protect the lives of American citizens and 
property, including appropriate measures of self-defense under Article 5 1 of 
the UN Charter." 52 

Cambodia condemned the assault, claiming it was "a brutal act of aggres- 
sion." 53 Cambodia also stated that the attack was not militarily necessary, in 
that it had already begun preparations to release the ship. 54 China sided with 
Cambodia, labeling the assault an "act of piracy." 55 Algeria and Thailand also 
condemned the attack, the latter because its bases had been used as a staging 
area for the assault team. 56 

The Evacuation of U.S. Citizens from Lebanon — 1976 

When the long-running civil war in Lebanon reached a threshold threatening 
the lives oi the few Americans remaining in the country, the United States 
evacuated a small group to a warship on June 28 th , 1976, and again on July 
27 th . 5 ' Interestingly, the U.S. consulted no domestic authority before the first 
evacuation, but pursued a different course before the second. Instead of 
requesting the approval of the de jure Lebanese government, whose influence 
over events asymptotically approached irrelevance, the U.S. coordinated with 
those actually in control o{ the territory — the PLO and several other 
Palestinian groups. 58 While this coordination, like that with the Dominican 
quasi-authorities eleven years earlier — had little influence on the academic 
legality of the operation, it did provide an improved chance of conducting the 
operation with as few casualties as possible. In this case, no U.S. servicemen or 
Lebanese civilians were killed. 59 

The Israeli Raid on Entebbe — 1976 

On June 27 th , 1976, a French airliner enroute from Tel Aviv to Paris was 
hijacked by four Palestinian terrorists. After a brief stop in Libya, the aircraft 
flew to Uganda, where it was joined by six additional terrorists. The terrorists 
freed all of the non-Israeli passengers, and specifically threatened the lives of 
those who remained. The government of Uganda was at best uncooperative in 
attempts to negotiate a settlement, and appeared to be providing support to the 

60 

terrorists. 

238 



Conclusion 



The evening of July 3 rd and 4 th , Israeli commandos stormed the main termi- 
nal at the Entebbe Airport in Uganda. Killed were all of the terrorists who were 
holding 96 Israelis hostage, along with several hostages who stood up in the 
middle of the melee, a number of Ugandan soldiers, and one Israeli commando. 
To prevent pursuit, the Israelis also destroyed the operational Ugandan fighters 
(approximately 10) on the tarmac. 61 

The unique aspect of this raid was that the nationals in question were taken 
to the foreign country against their will. 62 This suggests that the foreign nation- 
als concerned were less responsible for weighing the risks involved in travelling 
to and living in the dangerous country in question. It is also more difficult for 
the intervening state to fashion a pretext in the rush of a terrorist event than 
over the course of a long-deteriorating civil situation. Finally, the actions re- 
quired to rescue people in a confined hostage setting are necessarily less intru- 
sive than to secure an area with a foreign capital against riots. These three 
reasons appear to make intervention in the case of a terrorist event less prob- 
lematic than even traditional protection of nationals abroad. 

Israel made a forceful case for its rescue mission at a meeting of the Security 
Council on July 9 th . It claimed that it had the right "to take military action to 
protect its nationals in mortal danger." 63 This right, Israel claimed, was based 
on the inherent right of self-defense, "enshrined in international law and the 
Charter of the United Nations," and supported by state practice. 64 Israel stated 
that this exercise of self-defense met the standard of the Caroline case: "Neces- 
sity of self-defense, instant, overwhelming, leaving no choice of means and no 
moment for deliberation." 65 Finally, Israel explained that the use of force was 
not directed at Uganda per se, and employed only as much force as was neces- 
sary to secure and extract its nationals. 66 

The United States was the only country to make a clear statement support- 
ing the legality of the Israeli raid. At the same Security Council meeting, the 
U.S. first stated that the intervention was "a temporary breach of the territorial 
integrity of Uganda." 67 While this sort of breach is normally considered a viola- 
tion of the UN Charter, this case, the U.S. argued, fit within an exception. 
"There is a well-established right," said the U.S., "to use limited force for the 
protection of one's own nationals from an imminent threat of injury or death in 
a situation where the State in whose territory they are located is either unwill- 
ing or unable to protect them." 68 The U.S. stated that this right flows from the 
inherent right of self-defense and allows "necessary and appropriate" force to 
protect a nation's own citizens. 69 By these criteria, the U.S. concluded, the raid 
on Entebbe was a lawful use of force under international law. The U.S. found 

239 



Forcible Protection of Nationals Abroad 



the force used to be proportional to the limited goal of freeing the passengers, 
and the use of force had ended once this goal had been achieved. 70 

France also supported the Israeli intervention, in a manner of speaking. 
While stating that "at first sight . . . the surprise attack by an armed force on a 
foreign airport for the purpose of achieving by violence an objective" appeared 
to violate international law, the Israeli action had not been designed to infringe 
the territorial integrity or political independence of Uganda, but merely to save 
lives. 71 The French brought up an additional legal point, that the UN General 
Assembly's Resolution on the Definition of Aggression listed acts which were 
only prima facie evidence of acts of aggression, and that it was up to the Security 
Council to determine if, "in the light of other relevant circumstances," aggres- 
sion had actually been committed. 72 

The French Threat to Intervene in the Western Sahara — 1978 

On October 25 th , 1978, two French technicians were captured in Mauritania 
by Polisario guerillas. Two days later, the French Defense Minister refused to 
rule out a military raid to free them. A French parachute corps was moved to 
Senegal, and French aircraft participated in airstrikes on Polisario military 
formations on December 12 th , 13 th , and 18 th . On December 23 rd , the two 
technicians were turned over to the UN Secretary General in Algeria. 73 
Although the force was not applied in the form of a rescue mission, its indirect 
application had the desired result. 

The Egyptian Raid on Lamaca — 1978 

The first non- Western use of force to protect nationals abroad was, at best, a 
learning experience for all involved. Egypt sent a planeful of commandos to 
Larnaca, Cyprus, on February, 19 th to free Egyptian and other hostages taken 
the day before. Although the Egyptians received permission to land, they did 
not receive permission to storm the aircraft. The Cypriot authorities were 
successfully concluding negotiations with the terrorists, and the passengers had 
begun to leave the aircraft, when the Egyptians decided to attack. The Cypriot 
military opened fire on the Egyptians, arrested the terrorists, and helped the 
hostages to safety. 74 

The Egyptians defended their actions less as the protection of nationals 
abroad (although several of the hostages were Egyptian, and an Egyptian had 
been killed by the terrorists in the initial seizure of the hostages) , and more as 
an amorphous commitment "to fight terrorism and to bring all those who use 
such methods to justice." 75 

240 



Conclusion 



The U.S. Hostage Rescue Attempt in Iran — J 980 

On the evening of 24-25 April, 1980, the United States launched a commando 
raid into Iran to rescue 50 hostages who had been held since November 4 th of 
the previous year. The raid ultimately failed due to weather, equipment 
malfunction, and bad luck. 

Although the hostage incident preoccupied the United States from late 
1979 to early 1981, and was responsible for an enormous amount of diplomatic 
maneuvering, the specific question of using force in the protection of nationals 
abroad was fairly straightforward. The IC] decision in the hostages case, ren- 
dered on May 24 th , characterized the actions of the "students" holding the hos- 
tages as fairly educible to the Iranian government: "[T]he approval given to 
these nacts by the Ayatollah Khomeini and other organs of the Iranian State, 
and the decision to perpetuate them, translated continuing occupation of the 
Embassy and detention of the hostages into acts of that State." 76 This retro- 
spective linking of the "students" actions to the Iranian State permitted action 
against that state as though it had perpetrated those actions in the first place. 

President Carter stated: 

I ordered this rescue mission prepared in order to safeguard American lives, 
to protect America's national interests, and to reduce the tensions in the world 
that have been caused among many nations as the crisis continued. . . . The 
mission . . . was a humanitarian mission. It was not directed against Iran; it was 
not directed against the people of Iran. It was not undertaken with any feeling of 
hostility toward Iran or its people. 77 

In his report to Congress, he declared: "In carrying out this operation, the 
United States was acting wholly within its right, in accordance with Article 5 1 
of the United Nations Charter, to protect and rescue its citizens where the 
government of the territory in which they are located is unwilling or unable to 
protect them." 78 

While usual countries supported or condemned the raid in political terms, 
the Italian Foreign Minister Colombo, echoing Reisman, provided an illumi- 
nating legal comment: 

There was ... on the part of Iran alone an extremely serious infringement oi the 
rules of international law. The State which falls a victim to such an infringement 
has the power, under international law, to resort to self-help. Even the United 
Nations Charter recognizes this right as inherent, the exercise of which is 
subordinate to the powers and duties conferred on the Security Council, for 
restoring the rule of law. But the Charter also recognizes the right of each 

241 



Forcible Protection of Nationals Abroad 



permanent member of the Security Council to veto. Each permanent member 
must be aware of the responsibility it takes upon itself when vetoing a resolution 
of the Security Council, by pointing the way to self-help. 79 

US. Intervention in Grenada — 1983 

On October 25 th , 1983, the U.S. launched Operation Urgent Fury, a large 
amphibious and air assault on the island nation of Grenada. This was in 
response to an increasingly anarchic situation, precipitated earlier in the 
month by a coup d'etat against the island's Marxist Prime Minister, Maurice 
Bishop, by hard-line members of his own government. On October 19 th , Bishop 
and scores of others were killed in an unsuccessful attempt to regain control of 
the island's government. Later that same day, General Hudson Austin, head of 
the new "Revolutionary Military Council," announced a four-day, 24-hour, 
shoot-on-sight curfew. Concerned for the safety of American tourists and 
medical students on the island, and alarmed by the presence of a large number 
of armed, Cuban paramilitary construction workers on the island (completing 
work on an airstrip large enough to support heavy military aircraft) , the United 
States took action. 

Although the Grenadian operation appeared to have the classic factual 
predicate for a traditional forcible protection of nationals scenario, it was not 
for two specific reasons. First, the operation was conducted at the request of 
the Governor-General of Grenada, whose constitutional authority, particularly 
in the absence of any other de jure government, was unsurpassed by any other 
claimant to power. 81 Second, the operation was a textbook example of collec- 
tive self-defense, in that the United States' assistance was forcefully and ur- 
gently requested by the Organization of Eastern Caribbean States. 82 Despite 
the fact that there appear to be three independently sufficient legal justifica- 
tions for the U.S./OECS intervention, 79 governments expressed some level of 
disapproval of the operation, and on November 2 nd , the UN General Assembly 
voted 108 to 9 to condemn the intervention as a "violation of international 
law." 83 This was somewhat offset by the overwhelming support for the opera- 
tion shown by the people of Grenada. 84 

The US. Intervention in Panama — 1989 

Six years later, another small nation in the Western Hemisphere had had its 
democratic election invalidated by a military strongman, and the latent threat 
to local citizens and foreign nationals gradually escalated to unacceptable 
levels. As Arend and Beck describe: 



242 



Conclusion 



On December 20, 1989, the United States launched an invasion of Panama 
code-named Operation 'Just Cause.' In a special press briefing given that day, 
Secretary of State James Baker emphasized that the 'leading objective' of the US 
military action had been 'to protect American lives.' [footnote omitted] Earlier 
on D-Day, President Bush had tersely explained the rationale for his decision to 
use force: 'Last Friday, [General Manuel] Noriega declared his military 
dictatorship to be in a state of war with the United States and publicly 
threatened the lives oi Americans in Panama.' On Saturday, 'forces under his 
command shot and killed an unarmed American serviceman, wounded another, 
arrested and brutally beat a third American serviceman and then brutally 
interrogated his wife, threatening her with sexual abuse. That, said the president, 
'was enough!' [footnote omitted] It was time to act. 85 

Two factors make the analysis of the intervention more difficult. First is the 
sheer scale of the operation: ten thousand American troops eventually seized 
control of the entire country, removed the de facto head of state to face drug 
trafficking charges in the U.S., and reinstalled the de jure, democratically- 
elected government. 86 Second, President Bush cited four overlapping justifica- 
tions for the intervention: "to safeguard the lives of Americans, to defend de- 
mocracy in Panama, to combat drug trafficking and to protect the integrity of 
the Panama Canal Treaty." 87 Of these, claimed Secretary of State Baker, the 
protection of American lives was "the leading one." 88 

Reaction to the invasion was generally negative — mildly so in Europe, and 
stridently so in Latin America. 89 The communist world was also condemna- 
tory, with the Soviet Union calling the operation "a violation of the United Na- 
tions Charter and of the universally accepted norms of behavior between 
sovereign states." 90 China simply labeled it "a violation of internal law." 91 The 
United States, Britain, and France vetoed a Security Council resolution con- 
demning the invasion. 92 

The U.S. Intervention in Liberia — 1990 

On August 5 th , 1990, the United States landed 255 Marines in the Liberian 
capital of Monrovia to evacuate U.S. and any other nationals desiring to leave 
the country. This was in immediate response to an announcement the day 
before by rebel leader Prince Johnson, who called for the arrest of all foreign 
nationals in the capital. Johnson apparently wished to attract international 
attention to his rebel faction, and provoke an international response to the 
seven-month-old rebellion. 93 In this, he was successful. 

Without seeking or receiving permission from embattled President Samuel 
K. Doe or either of the rival rebel faction leaders, the Marines evacuated 

243 



Forcible Protection of Nationals Abroad 



approximately one thousand foreign nationals from Monrovia over a two-week 
period. 94 On August 24 th , a West African peacekeeping force arrived in 
Monrovia to enforce a cease-fire. 95 

Professor Lillich drew this conclusion from the international community's 
reaction to the evacuation: 

[T]he renewed assertion by the United States of the right of forcible protection 
o( its nationals during the Liberian disorder, the fact that hundreds of other 
foreign nationals from dozens of States were evacuated with what must have 
been the enthusiastic (if not explicit) approval of their governments, and the 
near-complete absence o( legal or other criticism of the rescue operation all 
combine to indicate that the international community, now more than ever in 
the post-Cold War period, is prepared to accept, endorse or, at the very least, 
tolerate the forcible protection of nationals abroad in appropriate cases. 96 

Theoretical Bases for Action 

The two major theories addressing the legality of the use of force in the 
protection of nationals abroad are the "restrictionist" theory, which views any 
such use of force as unlawful, and the "counter-restrictionist theory," which, as 
its name implies, holds the opposite view. Within the counter-restrictionist 
theory, there are several intermingled sub-theories supporting the general 
premise of allowing intervention. 

The Restrictionist Theory 

This theory, which states that there is no lawful basis for the forcible protection 
of nationals abroad, rests on three assumptions. First, it assumes that the sole 
principal goal of the United Nations is the maintenance of international peace 
and security. Second, it holds that the UN has a monopoly on the lawful use of 
force, with the narrow exception for self-defense in the case of armed attack on 
the territory of a state. Third, it maintains that if states were permitted to use 
force to protect their nationals abroad, or for any other reason beyond clear 
individual or collective self-defense, they would broaden this narrow mandate, 
using it as a pretext for any desired policy ends. 97 

Restrictionists concede that, under the pre-Charter legal regime, states did 
have the right to use force unilaterally in the protection o{ their nationals. 
However, they say, this right was often abused, placing weak states at the mercy 
of stronger ones wishing to advance national policy through violence. To end 
this practice, they conclude, the framers of the UN Charter specifically out- 
lawed the unilateral use of force, except for the most obvious cases of national 

244 



Conclusion 



self-defense against armed attack, and then only to the extent that the Security 
Council had not yet acted. According to Ian Brownlie, "[t]he whole object of 
the Charter was to render unilateral use of force, even in self-defense, subject 
to UN control." 98 

Arend and Beck concisely summarize the textual basis for the restrictionist 
argument: 

For their rendition o( the jus ad bellum, the restrictionists draw heavily upon 
Articles 2 (4) and 5 1 of the UN Charter. In their view, the language of Article 
2 (4) clearly indicates a general prohibition on the use of force by states, [footnote 
omitted] No state is permitted to threaten or use force 'against the territorial 
integrity or political independence of any state, or in any manner inconsistent 
with the Purposes of the United Nations.' Article 51, which provides for 
'individual and collective self-defense,' constitutes merely a narrow exception to 
the general prohibition of 2(4). [footnote omitted] States may defend 
themselves, restrictionists argue, but only after an actual 'armed attack' upon 
state territory has occurred, [footnote omitted] Typical of the restrictionist view 
is that described by Waldcock, himself a counter-restrictionist: '2(4) prohibits 
entirely any threat of use of armed force between independent States except in 
individual or collective self defense under Article 5 1 or in execution of collective 
measures under the Charter for maintaining or restoring peace.' [footnote 
omitted] The UN Charter's prohibition, the French restrictionist Viraly 
suggests, has the broadest range it is possible to imagine.' [footnote omitted] 99 

The restrictionist theory, in its purest form, allows no use of force against any 
terrorist or other groups who are using force below the invasion-level of an ar- 
mored column crossing a national border. 

The Counter -Restrictionist Theory 

The counter-restrictionist theory is actually a constellation of four overlapping, 
nonexclusive subtheories. 

The first subtheory involves the survival or revival of the pre-Charter cus- 
tomary rule allowing forcible protection of nationals abroad. Derek Bowett ar- 
gues for the survival of the customary rule. He believes that a reading of the 
Charter's travaux preparatoires shows that the framers intended to preserve the 
"inherent" right of self-defense, with the contours acquired from customary in- 
ternational law up to that point. More persuasively for Bowett, state practice 
since the Charter was ratified has confirmed that a significant number of states 
have exercised the right to protect nationals abroad, extending the customary 
international law norm into the present. 100 

245 



Forcible Protection of Nationals Abroad 



The other version of this subtheory holds that the norm has been revived in 
the modern era. Arend and Beck explain: 

In their view, the UN founders mistakenly assumed that 'self-help' would no 
longer be necessary 'since an authoritative international organization [could 
now] provide the police facilities for enforcement of international rights, 
[footnote omitted] Unfortunately for the international system, submit Michael 
Reisman, Richard Lillich, and other scholars, the UN enforcement mechanisms 
have been confounded at virtually every turn by dissension among the Security 
Council's permanent membership, [footnote omitted] Article 2(4)'s prohibition 
on the threat or use of force, they assert, must hence be conditioned on the 
United Nations' capacity to respond effectively. When the UN fails to do so, 
customary law revives and states may intervene to protect nationals, [footnote 
omitted] 101 

In summary, this subtheory posits that, whether it survived the entry into 
force of the Charter, or was extinguished by it and later revived by UN mal-, 
mis-, or nonfeasance, the customary norm under international law permitting 
the use of force in the protection of nationals abroad is alive today. 102 

The second subtheory describes the protection of nationals abroad as a per- 
missible use of force below the Article 2(4) threshold. The article itself directs: 
"All Members shall refrain in their international relations from the threat or 
use of force against the territorial integrity or political independence of any 
state, or in any way inconsistent with the UN's purposes." 103 Here, the key is 
that Article 2(4) has two dimensions: a quantitative aspect regarding the 
amount of violence or coercion, and a qualitative aspect regarding the end to 
which the violence or coercion is directed. An oversimplified reading of Article 
2(4) may leave the impression of a simple, and low, threshold, forbidding all 
uses or even threats of force not flowing from self-defense or Chapter VII 
authorization. The two-dimensional approach, however, keys on the language 
". . . against the territorial integrity or political independence of any state 
A legitimate use of force in the protection of nationals abroad does not take or 
hold territory, or threaten the government elected, or tolerated, by the people. 
Such a use of force is qualitatively different, and not the type which the framers 
of the Charter, with fresh memories of German and Japanese aggression, 
sought to circumscribe. A brief operation which, at its conclusion, has affected 
neither the territorial integrity nor the political independence of the threaten- 
ing state would not appear to have violated the qualitative prong of the Article 
2(4) prohibition. 104 

246 



Conclusion 



The third subtheory is a complement of the second; it holds that a threat to 
even a single national abroad is the equivalent of an "armed attack" against the 
nation, allowing for a protective, and not punitive, response proportional to 
the injury received or threatened. That is, the forcible protection of nationals 
abroad is permissible self-defense under Article 51. 105 Since Article 51 appears 
not to create, but to simply recognize, "the inherent right of self-defense," counter- 
restrictionists believe the Charter provides "a local habitation and a name" for 
the customary right of the first subtheory. The problem with this subtheory ap- 
pears to be that, like Article 2(4), Article 5 1 has both qualitative and quantita- 
tive aspects. The former fits well with the first subtheory, in that an "inherent" 
right could quite plausibly follow the contours of customary international law. 
The latter, however, suggests that there is a high threshold, "armed attack," be- 
low which the use of force is inappropriate. 

The counterargument to this last point is that it is difficult to imagine that 
the framers of the Charter would create a legal no-man's land, wherein a rogue 
state would be able to inflict violent injury, but the aggrieved state would not 
be able to respond in self-defense. 106 The key to reconciling this apparent 
lacuna is proportionality: self-defense operates across the spectrum of violence, 
and a small "armed attack" against a national abroad may be met with a neces- 
sary and proportional nonpunitive response designed to protect the victim 
from further harm. To the extent that Article 51 permits reaction against 
less-than-overwhelming uses of force, it demands a reciprocal limitation on the 
scope, duration, and intensity of the protective response. The customary inter- 
national legal doctrines comprising the law of armed conflict — military neces- 
sity, proportionality, and chivalry — provide these limitations even in the 
absence of an absolute prohibition by Article 5 1 . 

Finally, the fourth subtheory is grounded in a respect for human rights. Spe- 
cifically, McDougal and Reisman reject the restrictionist premise that the UN 
has one overriding purpose, the maintenance of international peace and secu- 
rity. They argue that the UN has two such fundamental premises, each deserv- 
ing equal weight: the maintenance of international peace and security, and the 
protection of human rights. 107 

This view is grounded in the Preamble, Articles 1, 55, and 56, and a large 
and growing corpus of human rights law. 108 Under this view, human rights vio- 
lations are themselves threats to international peace and security. If the Secu- 
rity Council fails to act under Chapter VII, McDougal and Reisman argue, "the 
cumulative effect of articles 1, 55, and 56 [would be] to establish the legality of 
unilateral self-help." 109 

247 



Forcible Protection of Nationals Abroad 



Conclusion 

This article defined forcible protection of nationals abroad, reviewed 
commentary on the concept by publicists from the late 18 th Century to the end 
of the pre-Charter era, and then surveyed the major uses o( force in the 
protection of nationals abroad during the Charter era. 

Lessons of State Practice 

Arend and Beck provide an outstanding structural review of state practice in 
the Charter era. They examine four broad areas — the nature of intervening 
states, the circumstances of intervention, the scope of intervention, and state 
justification for intervention — and explore subcriteria within each. From their 
analysis emerge several fascinating points about how states have protected 
nationals beyond their borders. 110 

The nature of the intervening states reveals two patterns: they have been al- 
most exclusively Western, and there have been very few of them. Of the 16 epi- 
sodes they describe, 13 involved the use of force by just four countries: the 
United States, Great Britain, France, and Belgium. Generally, these powers 
have been the only ones in a position to effectively project military power in a 
troubled region. 111 

The circumstances of the intervention have varied considerably. The num- 
ber of endangered nationals has ranged from the thousands (in the Congo and 
the Dominican Republic) to just two (in the Western Sahara). The govern- 
mental situation has also varied, from the anarchy of no government at all (Li- 
beria, the Dominican Republic) to a malevolent government actively 
threatening the nationals concerned (Uganda, Iran). The nationality has like- 
wise varied, from the rescue of own-country nationals (Entebbe, Mayaguez) to 
the evacuation of all foreign nationals in a troubled area (the Congo, Liberia, 
Grenada) . Interestingly, almost all such operations have occurred in areas that 
were, until the Charter era, under "Great Power" protection, usually as former 
colonies. Iran, Palestine, Egypt, Cambodia, the Congo, the Dominican Repub- 
lic, Lebanon, Uganda, the Western Sahara, Grenada, Panama — all were under 
varying degrees of Great Power control until recently. This resulted in two situ- 
ations: the turbulence which often accompanies recent independence, and a 
power which is both familiar with and, in a moral sense, responsible for, the for- 
mer territory. 112 

The scope of the intervention ran the gamut from brief excursions measured 
in minutes (Entebbe, Mayaguez) to months-long stays (the Dominican Repub- 
lic, Egypt). The longer-term operations, however, were only initially character - 

248 



Conclusion 



ized as the protection of nationals abroad. Once that phase of the operation 
had passed, new missions with new justifications took their place. The true pro- 
tective missions were extremely limited in the territorial scope, temporal dura- 
tion, and military intensity of their effects. 113 

Finally, the state justifications for the interventions varied as well. Most 
states have relied on multiple rationales for their operations, with the protec- 
tion of nationals near the top of the list in most cases. However, as operations 
lengthened or diversified, new justifications would be advanced once the na- 
tionals sought to be protected were secure. 114 

A Coherent Legal Model for the Protection of Nationals Abroad 
The four subtheories advanced by the counter-restrictionists each contain 
helpful elements. A model which includes the most authoritative portions of all 
four would provide a solid legal basis for undertaking such operations in the 
Charter era. 115 

The first subtheory, regarding the survival or revival of the customary 
norm allowing protection of nationals, is perhaps best understood as a synthe- 
sis of the two. To the extent that such an understanding does not run afoul of 
the plain language of the Charter, it appears that a narrowly construed form 
of self-defense did survive the entry into force of the Charter, and that a long 
line of customary international law informs its use today. The second portion 
of this argument, however, is the more controversial. To the extent that the 
UN did not deliver on the security it promised in return for a limitation on the 
national exercise of self-defense, that inherent right must necessarily expand 
to meet the new threats. Without violating the plain meaning of the Charter, 
nations should and must protect their citizens when no another authority, 
national or international, is willing or able. In this sense, this additional por- 
tion of the inherent right of self-defense has been revived as the UN has often 
proved incapable, as an organization, of maintaining international peace and 
security. 

The second subtheory, that such actions are below the qualitative threshold 
of Article 2(4), is a close call, but, in the case of a pure rescue operation, in ac- 
cord with the facts. If no territory is held, and if the political structure is not ma- 
terially threatened, it is difficult to argue that a rescue operation breaks the 
2(4) threshold. 

The third subtheory, that such operations are lawful exercises of the inher- 
ent right of self-defense, guaranteed by Article 51, is perhaps the strongest ar- 
gument. By allowing the threshold of an "armed attack" to float at the level of 
the provocation, a militarily necessary, proportionate, and chivalrous response 

249 



Forcible Protection of Nationals Abroad 



will guarantee compliance with international law. If a single citizen is placed in 
harm's way, and only that force necessary to bring her to safety is employed, 
then the protecting nation has gained no military advantage over the threaten- 
ing nation, the status quo is maintained, and international peace and security 
are preserved. Again, it is difficult to see how such an outcome violates the ob- 
ject and purpose of the Charter, or the intentions of its framers. 

Finally, the fourth subtheory argues for the equality of human rights with in- 
ternational peace and security. Since the framing o{ the Charter, we have 
learned more and more about the nature of regimes which threaten interna- 
tional peace and security. None of these governments have the requisite re- 
spect for the individual which is the basis for civil protections against tyranny. 
Far from being in tension with international peace and security, human rights 
are very much the foundation of international peace and security. A reading of 
the Charter which places these two concepts in opposition is, consciously or 
not, of greater service to the Benito Mussolinis of history than the Theodore 
Roosevelts. 

Notes 

1 . Benito Mussolini, quoted by Gen. Smedley D. Butler, reprinted in THE POCKET BOOK OF 
QUOTATIONS 379 (Henry Davidoffed., 1952). 

2. Theodore Roosevelt, quoted in BARBARA TUCHMAN, PRACTICING HISTORY 115 (1981). 

3. Rev. Jesse Jackson, remarks on Nightline, December 15, 1987. 

4. Anthony Clark Arend and Robert J. Beck, International Law and the Use 
of force: Beyond the UN Charter Paradigm 94 (1993). 

5. Id. Ronzitti further restricts the scope of consent with several criteria: 

First of all, consent must come from an authority whose expression of will is ascribable 
to the local State. ... Secondly, the expression of will of the local State must be valid, 
not vitiated by the so-called 'vices de volonte.'. . . [T]he consent of the injured State 
must not only not be given by error, obtained by fraud, or procured by coercion but 
must also comply with the territorial sovereign's internal provisions regarding 
competence to be bound. . . . Thirdly, the action by the intervening State must be 
strictly confined to the limits of the consent given by the local sovereign. The State 
whose nationals are in mortal danger, even if it is permitted to enter foreign territory, 
is not automatically allowed to resort to force, if it lacks authorization to do so. ... 
Moreover, the action of the intervening State must not infringe upon the rules by 
which a State is duty bound not as regards a particular subject of international law but 
as regards the international community as a whole. ... [T]he consent of the State 
cannot function as an erga omnes defence. ... Finally, the consent must not be 
contrary to a peremptory rule of international law. [footnotes omittedl 

Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion 
and Intervention on Grounds of Humanity 84-86 (1985). Ronzitti continues, stating 

that treaties are a valid vehicle of consent: "Practice shows that, by virtue of a treaty, a right to 

250 



Conclusion 



intervene in foreign territory for carrying out activities which would certainly be unlawful 
without the treaty so providing, is sometimes given, [footnote omitted] Id. at 115. For an 
examination of treaty-based intervention, see David Wippman, Treaty-Based Intervention: Who 
Can Say No?, 62 U. CHI. L. REV. 607 (1995). 

6. AREND AND BECK, supra note 4, at 94. See also RONZITTI, supra note 5 at 135-148. 
Ronzitti also addresses the use of force against pirates and slavers. Id. at 137-141. 

7. Id. 

8. Id. 

9. E. VATTEL, THE LAW OF NATIONS 161 0- Chitty ed. 1883). See also Louis B. Sohn, 
International Law and Basic Human Rights, in RICHARD B. LlLLICH AND JOHN NORTON 

Moore eds, U.S. Naval War College International Law Studies: Readings in 
International Law from the Naval War College Review 1947-1977, Vol. 62, 587, 

588 (1980). Professor Sohn traces the use of force in the protection of nationals abroad back as 
far as the 1 1 th Century. Id. 

10. E. VATTEL, supra note 9 at 165. 

1 1 . William Edward Hall, a Treatise on the Foreign Powers and Jurisdiction 

OF THE BRITISH CROWN 2 (1894). Hall continues, describing the connection between the 
sovereign and the subject, and the sovereign's power over the subject: 

The legal relations by which a person is encompassed in his country of birth and 
residence cannot be wholly put aside when he goes abroad for a time; many of the acts 
which he may do outside his native state have inevitable consequences within it. He 
may for many purposes be temporarily under the control of another sovereign than his 
own, and he may be bound to yield to a foreign government a large measure of 
obedience; but his own state still possess a right to his allegiance; he is still an integral 
member of the national community. A state therefore can enact laws, enjoining or 
forbidding acts, and defining legal relations, which oblige its subjects abroad in 
common with those within its dominions. It can declare under what conditions it will 
regard as valid acts, done in foreign countries, which profess to have legal effect; it can 
visit others with penalties; it can estimate the circumstances and facts as it chooses. 

Id. 

12. Id. at 3. 

13. Id. at 4. 

14. EDWIN M. BORCHARD, THE DIPLOMATIC PROTECTION OF CITIZENS ABROAD 446 
(1928). 

15. Id. at 448. 

16. Id. at 450. Borchard lists the bases for intervention: 

Among the various purposes for which troops and marines have been landed, are the 
following: [footnote omittedl (1) for the simple protection of American citizens in 
disturbed localities, the activity of the troops being in the nature of police duty; [footnote 
omitted] (2) for the punishment of natives for the murder or injury of American citizens 
in semi-civilized or backward countries; [footnote omitted] (3) for the suppression of local 
riots, and the restoration and preservation of order; [footnote omitted] (4) for the 
collection of indemnities, either with or without the delivery of a previous ultimatum; 
[footnote omitted] (5) for the seizure of custom-houses, as security for the payment of 
claims; [footnote omitted] and for purposes such as the maintenance of a stable 
government, the destruction of pirates infesting certain areas, and other objects. 

Id. at 449-50. 

251 



Forcible Protection of Nationals Abroad 



17. Id. at 452. 

18. AREND AND BECK, supra note 4, at 95. 

19. RONZITTI, supra note 4, at 26. 

20. Id. 

21. Id. 

22. Id. 

23. Id. at 26-27. 

24. Id. at 27. 

25. id. 

26. Id. 

27. Id. 

28. Id. at 27-28. 

29. Id. at 28. The troops were present in the Canal Zone pursuant to a treaty with the 
government of Egypt, signed on August 26, 1936. Id. 

30. Id. 

31. Id. 

32. Id. 

33. Id. 

34. Id. at 29. 

35. Id. Foreign Secretary Lloyd echoed this comment before the House of Commons, and 
added that the Security Council was, in any case, incapable of taking swift and decisive action. Id. 

36. Id. 

37. Id. 

38. Id. 

39. Id. 

40. AREND AND BECK, supra note 4, at 96. 
4 1 • RONZITTI, supra note 5, at 30. 

42. Id 

43. Id. 

44. Id. at 31. 

45. Id. at 32. 

46. Id. at 31. Two other instances in Africa, both in 1964, do not meet the criteria of 
protection of nationals abroad in that they were undertaken with the approval of the local 
sovereign. This, of course, renders the action a cooperative one between nations, and not an 
intervention with adversary sovereigns. 

The first was the evacuation of British citizens in Zanzibar, following a coup d'etat against the 
sultan. The new government quietly invited the British, who had dispatched a warship to the 
area, to evacuate its own citizens. Id. at 32. 

The second incident was a joint U.S. - Belgian operation, again in the Congo, to rescue foreign 
nationals from rebels. AREND AND BECK supra note 4, at 97. According to Professor Lillich, 
diplomacy and alternative measures had gotten nowhere: "[T]he United Nations got bogged 
down in debate upon it. They finally decided to let the Organization of African Unity attempt to 
do something: they tried and they were very, very unsuccessful." Richard B. Lillich, Forcible 
Self-Help Under International Law, in RICHARD B. LILLICH AND JOHN NORTON MOORE EDS, 

U.S. Naval War College International Law Studies: Readings in International 
Law from the Naval War College Review 1947-1977, Vol. 62, 587, 597 (1980) 

[hereinafter Forcible Self-Help]. The subsequent intervention was highly successful, and 
conducted with the permission of the Congo's government. However, this situation highlights 



252 



Conclusion 



the tenuous nature of such permission: Congolese Foreign Minister Bomboko consented to the 
operation, but after it had been set in motion, Prime Minister Patrice Lumumba overruled him. 
The practical effect of the post hoc withdrawal of permission was negligible, but it does serve to 
emphasize the role of timing in such operations. M. Akehurst, The Use of Force to Protect 
Nationals Abroad, INT'L REL. 5: 7 (1977). Professor Sohn noted that, while the scope of the 
mission was strictly limited to rescue of the hostages, a certain amount of force was required to 
effect their release: "In the process of rescuing them, the army of rebellion was more or less 
destroyed, but that was purely incidental." Sohn, supra note 9, at 597. 

47. RONZITTI, supra note 5, at 33. Ronzitti states that " the island was, to all effects, in the 
throes of anarchy." Id. 

48. AREND AND BECK, supra note 5, at 397-98. 

49. RONZITTI, supra note 5, at 33. 

50. AREND AND BECK, supra note 4, at 98. 

51. RONZITTI, supra note 5, at 35-36. 

52. Id. at 36. 

53. AREND AND BECK, supra note 4, at 98. 

54. RONZITTI, supra note 5, at 36. 

55. AREND AND BECK, supra note 4, at 98. 

56. RONZITTI, supra note 5, at 36. 

57. AREND AND BECK, supra note 4, at 97-98. 

58. AREND AND BECK, supra note 4, at 99. 

59. RONZITTI, supra note 5, at 37. 

60. Id. 

61. AREND AND BECK, supra note 4, at 99. 

62. Id. 

63. RONZITTI, supra note 5, at 37. 

64. Id. 

65. Id. 

66. Id. 

67. 31 U.N. SCOR (1941 st mtg.) 31, U.N. Doc. S/p.v. 1941 (1976), quoted in Richard B. 
Lillichy Introduction to Volume II: The Use of Force, Human Rights, and General International 
Legal Issues, in RICHARD B. LlLLICH AND JOHN NORTON MOORE EDS, U.S. NAVAL WAR 

College Intern ationaI Law Studies: Readings in International Law from the 

NAVAL WAR COLLEGE REVIEW 1947-1977, VOL. 62, IX, XI (1980) [hereinafter Introduction]. 

68. Id. 

69. Id. 

70. Id. 

71. RONZITTI, supra note 5, at 38. 

72. Id. 

73. Id. at 40. 

74. Id. at 40-41. 

75. Id. at 41. 

76. Id. at 44. 

77. Id. This Presidential Statement places an unusual emphasis on feelings. The author was 
present at a White House conversation, when a participant in the rescue mission was asked if he 
would have killed the Iranian "student" guarding the three Americans he had been assigned to 
recover. "Let's just say," replied the commando, "that meeting me would have been a significant 
emotional event in his life." Notes of conversation on file with the author. 

253 



Forcible Protection of Nationals Abroad 



78. Id. at 45. Ronzitti provides an excellent explanation: 

[Under Reisman's theory,] [t]he Charter does not abrogate a State's right to resort to 
self-help, including the use of armed force, which belongs to it under customary 
international law. The Charter simply suspends the right to resort to self-help, since it 
entrusts the Security Council with the task of safeguarding the rights of member 
States. Whenever this mechanism does not function, for example when the action of 
the Security Council is paralysed by veto, the States are free to resort to self-help, 
under the terms permitted by customary international law. 

Id. 

79. Id. at 46. 

80. AREND AND BECK, supra note 4, at 101. See generally John Norton Moore, Grenada and 
the International Double Standard, 78 A. J. I. L. 145 (1984) and Ronald M. Riggs, The Grenada 
Intervention: A Legal Analysis, 109 MIL. L. REV. 1 (1985). 

81. Moore, supra note 80, at 148 and 159-61. Moore explains: 

Constitutional niceties of internal authority are difficult to construct when the only 
general Constitution of a nation has been previously suspended in express violation of 
its provisions and a subsequent attempted coup has announced the dissolution of the 
Government that suspended the Constitution but was unable to consolidate effective 
power. It does seem clear in this setting, however, that the authority of the 
Governor-General to represent Grenada was stronger than that of anyone else. 

Id. at 159. 

82. Id. at 147-48. 

83. AREND AND BECK, supra note 4, at 101. President Reagan reported that the 
condemnatory General Assembly vote had not "upset my breakfast at all." Id. 

84- Moore, supra note 80, at 151-53. Moore quotes the results of a CBS News poll, 
conducted on November 6 th : 62% felt the Americans had come "to save the lives of Americans 
living here," 65% said they believed the airport under construction was being built for Cuban and 
Soviet military purposes, 76% stated they believed Cuba wanted to take control of the 
Grenadian government, 81% said the American troops were "courteous and considerate," 85% 
stated they felt they or their family were in danger while General Austin was in power, 85% said 
they felt the American purpose in invading was to "free the people of Grenada from the Cubans," 
and 91% were "glad the Americans came to Grenada." Id. at 152. 

85. AREND AND BECK, supra note 4, at 93. Professor Lillich recommended the following 
additional sources on the invasion of Panama: 

Compare Abraham Sofaer, The Legality of the United States Action in Panama, in: 
Columbia Journal of Transnational Law (Colum. J. Trans. L.) vol. 29, 1991, 281, with 
Louis Henkin, The Invasion of Panama Under International Law: A Gross Violation, 
in: Columbia Journal of Transnational Law (Colum. J. Trans. L.) vol. 29, 1991, 293. 
See also Anthony D'Amato, The Invasion of Panama Was a Lawful Response to 
Tyranny, in AJIL, vol. 84, 1990, 516; Tom Farer, Panama: Beyond the Charter 
Paradigm, in: AJIL, vol. 84, 1990, 503; Ved Nanda, The Validity of the United States 
Intervention in Panama Under International Law, in: AJIL, vol. 84, 1990, 494; John 
Quigley, The Legality of the United States Invasion of Panama, in: Yale JIL, vol. 15, 
1990, 276; James P. Terry, The Panama Intervention: Law in Support of Policy, in: 
Naval War College Review, vol. 43, 1990, no. 4, 1 10; Panel, The Panama Revolution, 
in: American Society of International Law Proceedings (ASIL Proc), vol. 84, 1990, 



254 



Conclusion 



182; Recent Developments, International Intervention — The United States Invasion 
of Panama, in: Harvard International Law Journal (Harv. ILJ), vol. 31, 1990, 633. 

Richard B. Lillich, Forcible Protection of Nationals Abroad: The Liberian "Incident" of 

1990, 35 German Yearbook of International Law 205, 206 (1993) 

[hereinafter Liberia] . 



86. 


AREND AND BECK, supra note 4, at 102. 


87. 


Id. 


88. 


Id. 


89. 


Id. 


90. 


Id. 


91. 


Id. 


92. 


Id. 


93. 


Id. 


94. 


Id. Included in the evacuated were French, Canadian, Italian, Lebanese, and even Iraqi 


citizens 


i.W. 



95. Id. at 102-103. For a more in-depth treatment of the incident, see Richard B. Lillich, 
Forcible Protection of Nationals Abroad: The Liberian "Incident" of 1990, 35 GERMAN 

Yearbook of International Law 205 (1993). Lillich, supra note 85, at 205. 

96. Lillich, Liberia, supra note 85, at 222-23. 

97. AREND AND BECK, supra note 4, at 105. See also Riggs, supra note 80, at 22. 

98. AREND AND BECK, supra note 4, at 106. 

99. Id. 

100. Id. at 107. 

101. Id. Reisman himself continues: "A rational and contemporary interpretation of the 
Charter must conclude that Article 2(4) suppresses self-help lonly] insofar as the organization 
can assume the role of enforcer." When the UN fails in its mission "self-help prerogatives revive." 
[footnote omitted]. Any interpretation which fails to take this into account would merely 
provide "an invitation to lawbreakers who would anticipate a paralysis in the Security Council's 
decision dynamics." Michael Reisman, Sanctions and Enforcement, in C. Black and R. Falk (eds), 
THE FUTURE OF THE INTERNATIONAL LEGAL ORDER, 3: 850 (1971), quoted in AREND AND 
BECK, supra note 4, at 107-08. 

102. Professor McDougal summarized this position eloquently: 

[T]he first important fact is that the machinery for collective police action 
projected by the Charter has never been implemented. We don't have the police 
forces for the United Nations, the collective machinery that was expected to replace 
self-help. In other words, there has been a failure in certain of the major provisions for 
implementing the Charter. 

If, in the light of this failure, we consider how we can implement the principal 
purposes of minimizing coercion, of insuring that states do not profit by coercion and 
violence, I submit to you that it is simply to honor lawlessness to hold that the 
members of one state can, with impunity, attack the nationals — individuals, ships, 
aircraft or other assets — of other states without any fear of response. In the absence of 
collective machinery to protect against attack and deprivation, I would suggest that 
the principle of major purpose requires an interpretation which would honor self-help 
against prior unlawfulness. The principle of subsequent conduct would certainly 
confirm this. . . . 

255 



Forcible Protection of Nationals Abroad 



Myers McDougal, Authority to Use Force on the High Seas, 20 NAVAL WAR COLLEGE REVIEW 19, 
28-29 (Dec. 1967), quoted in Lillich, Introduction, supra note 67, at XL 

103. AREND AND BECK, supra note 4, at 108. 

104. But see RONZITTI, supra note 5, at 8-9. 

105. Riggs, supra note 80, at 24. 

106. Ronzitti acknowledges the problem of assuming that an "armed attack" can involve only 
aggressive international war: 

[P]ractice shows that, when a State intends to wrongfully use armed coercion, it does 
so in one of two ways: i) by using force against the territory of another State, or ii) by 
exerting armed coercion within its own territory against foreign instrumentalities (e.g. 
embassies) or citizens (individuals or State organs, such as foreign representatives). 
Whereas in the former case the victim may react in self-defence, in the latter this is 
not possible, since it is declared that there has been no 'armed attack'. 

RONZITTI, supra note 5, at 66. He continues: 

[I]n recent years, particularly unpleasant episodes have repeatedly occurred, such as 
the taking of hostages, and transnational terrorism. These events are the cause of a 
continual state of danger. Unless the international community acquires suitable 
instruments, capable of preventing and representing [sic] such criminal events, 
resorting to unilateral armed force is likely to continue to increase on the part of those 
States whose nationals become the victims of terrorist attacks, in order to fill the 
vacuum created by the lack of effective control mechanisms. 

Id. 

107. AREND AND BECK, supra note 4, at 109. See also Riggs, supra note 80, at 23. 

108. AREND AND BECK, supra note 4, at 109. Arend and Beck summarize McDougal and 
Reisman's position: 

The Preamble's "repeated emphasis upon the common interests in human rights," 
argue Reisman and McDougal, "indicates that the use of force for the urgent 
protection of such rights is no less authorized than other forms of self-help," [footnote 
omitted] Under Article 1(3), they suggest, "promoting and encouraging respect for 
human rights" is set out as a fundamental purpose of the United Nations, [footnote 
omitted] Similarly, Article 55 of the Charter points to the UN objective of promoting 
"human rights" observance, while Article 56 authorizes "joint and separate action [by 
Members] in cooperation with the Organization for the achievement of the purposes 
set out in Article 55." [footnote omitted] 

Id. 

109. Id. AREND AND BECK, supra note 4, at 109. See ako RONZITTI, supra note 5, at 2. 

1 10. AREND AND BECK, supra note 4, at 103. 

111. Id. 

112. Id. at 103-04. 

113. Id. at 104. 

114. Id. 

115. Riggs, supra note 80, at 25-33. 



256 



Conclusion 



Bibliography 

Akehurst, M., The Use of Force to Protect Nationals Abroad, INT'L REL. 5: 7 (1977) 

Arend, Anthony Clark and Robert J. Beck, International Law and the Use of 
Force: Beyond the UN Charter Paradigm 94 (1993) 

Borchard, Edwin M., The Diplomatic Protection of Citizens Abroad 446 (1928) 
D'Amato, Anthony, The Invasion of Panama Was a Lawful Response to Tyranny, AJIL, vol. 84, 
1990,516 
Davidoff, Henry ed., THE POCKET BOOK OF QUOTATIONS 379 (1952) 
Farer, Tom, Panama: Beyond the Charter Paradigm, AJIL, vol. 84, 1990, 503 

Hall, William Edward, A Treatise on the Foreign Powers and Jurisdiction of 
the British Crown 2 (1894) 

Henkin, Louis, The Invasion of Panama Under International Law: A Gross Violation, 
Columbia Journal of Transnational Law (Colum. J. Trans. L.) vol. 29, 1991, 293 
Jackson, Rev. Jesse, Remarks on Nightline, December 15, 1987 
Lillich, Richard B., Forcible Protection of Nationals Abroad: The Liberian "Incident" of 1990, 

35 German Yearbook of International Law 205 (1993) 

Lillich, Richard B., Introduction to Volume II: The Use of Force, Human Rights, and General 
International Legal Issues, in RICHARD B. LILLICH AND JOHN NORTON MOORE EDS, U.S. 

Naval War College International Law Studies: Readings in International Law 
from the Naval War College Review 1947-1977, Vol. 62, ix, xi (1980) 

lillich, Richard B., Forcible Self-Help Under International Law, in RICHARD B. LILLICH AND 

John Norton Moore eds, U.S. Naval War College International Law Studies: 
FIeadings in International Law from the Naval War College Review 1947-1977, 
vol. 62, ix, xi (1980) 

Moore, John Norton, Grenada and the International Double Standard, 78 AJIL. 145 (1984) 

Nanda, Wed, The Validity of the United States Intervention in Panama Under International 
Law, AJIL, vol. 84, 1990, 494 

Panel, The Panama Revolution, American Society of International Law Proceedings (ASIL 
Proc.),vol.84, 1990,182 

Quigleyjohn, The Legality of the United States Invasion of Panama, Yale JIL, vol. 15, 1990, 276 

Recent Developments, International Intervention — The United States Invasion of Panama, 
Harvard International Law Journal (Harv. ILJ), vol. 31, 1990, 633 

Reisman, Michael, Sanctions and Enforcement, in C. Black and R. Falk (eds) The Future of the 
International Legal Order, 3: 850 (1971) 

Riggs, Ronald M., The Grenada Intervention: A Legal Analysis, 109 MIL. L. REV. 1 (1985) 

Ronzitti, Natalino, Rescuing Nationals Abroad Through Military Coercion and Intervention 
on Grounds of Humanity 26 (1985) 

Sofaer, Abraham, The Legality of the United States Action in Panama, Columbia Journal of 
Transnational Law (Colum. J. Trans. L.) vol. 29, 1991, 281 

Sohn, Louis B., International Law and Basic Human Rights, in Richard B. Lillich and John 
Norton Moore eds, U.S. Naval War College International Law Studies: Readings in 
International Law from the Naval War College Review 1947-1977, Vol. 62, 587, 588 (1980) 

Terry, James P., The Panama Intervention: Law in Support of Policy, Naval War College 
Review, vol. 43, 1990, no. 4, 1 10 

Tuchman, Barbara, Practicing History 115 (1981) 

Vattel, E., The Law of Nations 161 Q. Chitty ed. 1883) 

Wippman, David, Treaty-Based Intervention: Who Can Say No?, 62 U. Chi. L. Rev. 607 (1995) 

257 



Index 



Abarenda, USS: 154 

Abeche, Chad: 105 

Abyssinia: 9, 27-28 

Accessory Transit Company: 120, 121-22 

Accioly, H.: 19-20 

Act for The Government of the Navy of the United States, An (1799): 188, 190 

Adams, USS: 133 

Adoula, Cyrille: 50 

Aizpuru: 131, 132 

Al-Matni, Nasib il: 44 

Albania: 33-34 

Albany, USS: 166 

Alexandria, Egypt: 130, 234 

Algeria: 237, 240 

Alliance, USS: 131 

Almy, Admiral: 129 

Amapala, Honduras: 149-50, 168 

American Cable Company: 153 

American Mission compounds in China: 165-66 

Ancon, Panama: 147 

Anderson, Admiral: 167 

Angles: 2 

Anglo-Iranian Oil Company: 233 

Angola: 125 

Apia, Samoa: 132, 140-41 

Arab League: 44 

Arab nationalism: 43-44 

Arend, Anthony Clark: 230, 242, 244-45, 247 

Argentina: 10, 25-26, 99, 117-18, 119, 133, 236 

Arias, General Desiderio: 161 

Aristodemus: 2 

Ariston of Tyre: 2 

Army of Cuba Pacification: 148 

Asheville, USS: 168 

Asiatic Fleet: 154, 155, 170, 174-75 

Asiatic Squadron: 126 

Aspinwall (Colon), Panama: 128 

Atlanta, USS: 137, 144 

Atlantic Squadron: 131 

Attican law: 1-2 

Attwood, William: 51, 54-55 

Austin, General Hudson: 241 



Forcible Protection of Nationals Abroad 



Austria: 10 
Austria-Hungary: 31 



B 



Baker, James: 106,242^13 

Balmaceda: 133-34 

Baltimore, USS: 133, 135-37 

Bani-Sadr: 65 

Barbary States: 4 

Barnard, Philippe: 106 

Basra, Iraq: 233 

Bayard, Secretary 7 of State: 14 

Beck, Robert J.: 230, 242, 244-45, 247 

Beirut, Lebanon: 44, 46-47, 48-49, 144 

Belgium: 247 

and the Congo: 49-57, 98-99, 235-36 

and Rwanda: 104-05, 107 

and Zaire: 100-101,105-07 
Belknap, Commander: 129-30 
Bell, John: 27-28 
Bell, Rear Admiral: 126 
Benham, Rear Admiral: 135 
Bennett, W. Tapley: 60-61 
Benoit, Colonel: 60 
Berard, M.: 99 
Bigelow, Lt. A.: 119 
Bishop, Maurice: 241 
Blockades: 199-200, 201, 202, 203, 205, 206, 208-09, 210-11, 212-13, 215, 219 

of Argentina: 25-26 

of Venezuela: 33 
Bluefields, Nicaragua: 135, 140, 149, 174, 175 
Bluntschli, J. M.: 7, 8-10, 28 
Bocas del Toro, Panama: 137, 143 
Bond, Karl I.: 106 

Bonfils, H.: 10, 18, 26, 27, 30, 31, 33 
Bonilla: 144 

Borchard, Edwin: 14-15, 32, 232 
Borland, Solon: 121 
Bosch, Juan: 57-59, 60 
Boston, USS: 134 
Bowett, Derek: 35, 245 
Boxer, USS: 59, 60 
Boxer Protocol of 1901: 142 
Boxer Rebellion: 15-16, 31-32, 141-42 
Brandywine: 118 
Brazil: 26, 134-35 

260 



Index 



Brilliant, HMS: 150 

British Navy regulations: 188-89, 190, 191, 199 

Brooklyn, USS: 144 

Brown: 72 

Brown, Admiral George: 133 

Brownlie, Ian: 36-37, 244 

Buenos Aires, Argentina: 25, 117-18, 119, 133 

Buffalo, USS: 158 

Bush, George: 242-43 

Butler, General Smedley D.: 229 

Butterfield & Swire's residence (China): 154 



Caamano, Francisco: 60 

Cabral, Reid: 236 

Cairo, Egypt: 234 

Calancha: 126 

Callao, Peru: 118 

Camaguey, Cuba: 162-63 

Cambodia: 237, 248 

Cameron, Capt. C. Duncan: 27-28 

Cameroon: 108 

Camp Nicholson, China: 157 

Canada: 107 

Canton, China: 123-24, 168, 180 

Cap-Haitien, Haiti: 159, 160 

Caperton, Admiral: 160 

Caracas, Venezuela: 33 

Carlson, Paul: 51 

Caroline case: 14, 239 

Carter, Jimmy: 64, 66, 71-72, 240-41 

Carthage: 2 

Cartiguenave: 161 

Cave, Stephen: 30 

Central African Republic: 108 

Chad: 101-02, 103, 105 

Chadwich, Rear Admiral French E.: 146 

Chamorro, General: 174 

Chamoun, Camille: 43, 44, 45-46, 47 

Chang Tso-lin: 170-71 

Chapei, China: 158, 177 

Charleston, USS: 136 

Chaumont, USS: 180 

Chebab, General: 44, 46 

Chemulpo, Korea: 132, 135-36 

Chiang Kai-shek: 179 

261 



Forcible Protection of Nationals Abroad 



Chile: 133-34 

Chin Kiang, China: 153, 179 

China: 237, 243. See also particular cities 

interventions in during the Boxer Rebellion: 15-16, 31-32, 141-42 

interventions in during the Chinese Revolution of 1911: 151-55, 157, 158, 161, 163, 
165-68, 169-71, 172-73, 174-75, 176-80 

Japanese occupation of: 18-19, 35-36 

and Russia: 163 

U.S. intervention in: 120-21, 122, 124-25, 136-37, 139, 151-55, 157, 158, 161, 163, 
165-68, 169-71, 172-73, 174-75, 176-80 
Chinwangtao, China: 166, 174-75 
Chiujio, Higashi Kuze: 128 
Cholma, Honduras: 148 
Christians 

and the Barbary States: 4 

in Lebanon: 42-48 

missionaries: 14 

protection of: 13-14, 135-36, 151-52, 154, 157, 165-66, 168 

and right of forcible protection: 2 
Christmas, General: 50 
Christopher, W.: 70, 72 
Chung King, China: 163 
Ciaris Estero, Mexico: 158 
Cienfuegos, Cuba: 147-48 
Cincinnati, USS: 143, 154 

Civil war or insurrection and right of protection of nationals in the affected State: 9, 11 
Civil War (United States): 10, 198 
Civil wars 

in China: 15, 16, 31-32, 141-42, 151-55, 157, 158, 161, 163, 165-68, 169-71, 172-73, 
174-75, 176-80 

in the Congo: 49-57 

in the Dominican Republic: 59-63 

in Guatemala: 165 

in Haiti: 159-61 

in Lebanon: 44, 46-47, 48-49, 238 

in Nicaragua: 175-76 

in Venezuela: 16, 33 
Claes, Willy: 106 
Clark, Commander: 131 
Clark, J. Reuben: 13, 14,29 
Clark, Ramsey: 64 
Cleveland, Grover: 134 
Cleveland, USS: 164 
Cold War: 43-44 

Colombia: 123, 125, 126, 128, 129, 131-32, 137, 142-43, 144-45 
Colombo: 241 
Colon: 131 



262 



Index 



Colon, Panama: 128, 131-32, 142-43, 145, 149 
Columbia, USS: 135 
Concentration camps 

in Cuba: 138-39 
Congo: 49-57, 98-99, 235-36, 247-48 
Congo Republic (Brazzaville) : 54 
Constantinople, Turkey: 32, 157 

Contractual claims, right to protect nationals in foreign countries regarding: 1 1-12 
Convention of Lebanon (1861): 26-27 
Coolidge, Calvin: 176 
Corfu: 18-19, 33-34 
Corinto, Nicaragua: 137-38, 156, 175 
Cotton, Admiral: 144 
Covenant of the League of Nations: 36 
Creditors of foreign governments, right to protect nationals who are: 8, 10, 1 1-12, 15-16, 30-31, 

32-33 
Cromwell, Captain: 137 

Cuba: 138-39, 147-48, 155-56, 162-63, 237, 241 
Cumae: 2 

Cyane, USS: 120, 121 
Cyprus: 240 
Czechoslovakia: 36-37, 163 

D 

da Gama, Admiral: 134-35 

Damascus, Syria: 34-35 

David, King of the Sandwich Islands: 129-30 

Davila, Miguel: 149, 150 

Davis, Rear Admiral: 127 

Dawson, Thomas C: 150 

de Lesseps, Ferdinand: 29 

Deby, Irdiss: 105 

Decatur, USS: 153 

Dehaene, Jean-Luc: 106 

Demetrius, King: 4 

Denver, USS: 168-69, 172 

Detroit, USS: 135, 136, 140, 145-46 

Diaz,Adolfo: 175 

Dillard: 67 

Dillingham, Commander: 145-46 

Diplomatic personnel, protection of 

in Argentina: 119, 133 

in China: 15, 16, 31-32, 120-21, 122, 136-37, 141-42, 152, 153, 154, 161, 163, 167-68, 
170, 171, 177-78, 180 

in the Dominican Republic: 161-62 

in Egypt: 130 

263 



Forcible Protection of Nationals Abroad 



in Guatemala: 165 

in Haiti: 159, 160 

in Hawaii: 133 

in Honduras: 168-69 

in Nicaragua: 156, 157, 166 

in Panama: 126, 137 

in Peru: 118 

in Russia: 163 

in Samoa: 140-41 

in Smyrna: 167 

in Turkey: 157 
Dixon, Pierce: 98 
Doe, Samuel K.: 243 
Dole, Sanford B.: 134 

Dominican Republic: 57-63, 70, 144, 145-46, 147, 161-62, 236-37, 248 
Don Pacifico case: 9-10 
Dubuque, USS: 149 
Dumas, Roland: 104 
Duncan, Capt.: 117 
Dunn, Frederick: 18 



Eden, Anthony: 234, 235 

Egan, Patrick: 133 

Egypt: 10, 11, 29-30, 43, 44, 97, 98, 130, 234-35, 240, 248 

Eisenhower, Dwight D.: 45-46, 48 

Eisenhower Doctrine: 43-44 

El Cuero, Cuba: 155-56 

Elcano, USS: 154, 164, 175 

Elf-Aquitaine oil refinery: 103-04 

Elis: 2 

Emerald, HUS: 178-79 

Emma, Dowager Queen of the Sandwich Islands: 130 

Entebbe, Uganda: 41, 67, 97, 238-39, 248 

Essex, USS: 132 

Estaing, Giscard d': 101 

Estrada, General Juan J.: 148, 149 

European State system: 1 

Evacuations of foreigners 

from the Central African Republic: 108 

from Chad: 105 

from China: 151-52, 153, 154, 176, 177, 178-79, 180 

from the Congo: 49-57, 98-99, 105-06 

from the Dominican Republic: 59-63, 236-37 

from the Falkland Islands: 117 

from Lebanon: 238 



264 



Index 



from Liberia: 243 
from Mexico: 158 
from Rwanda: 107 
from Samoa: 141 
from Zaire: 106-07 



Fabriga: 123 

Falkland Islands: 117 

Falmouth: 124 

Fauchille, P.: 16, 27, 32, 33 

Fish, Hamilton: 11-12 

Flores: 127 

Foochow, China: 153, 167-68 

Foote, Cmdr. A. H.: 123-24 

Forcible protection of nationals abroad 

Belgium in the Congo: 49-57 

collective action to provide: 16, 19, 41-42, 46, 47, 52, 107, 127, 242 

drawbacks to: 10, 31, 33 

definition of: 30 

Great Britain in China: 120-21, 123-24, 137 

Great Britain in Egypt: 234-35 

Great Britain in Iran: 233-34 

Great Britain in Nicaragua: 140 

Great Britain in Panama: 126 

Mayaquez incident: 237 

need for congressional authorization of: 15 

United States in Angola: 125 

United States in Argentina: 117-18 

United States in Brazil: 134-35 

United States in Chile: 133-34 

United States in China: 120-21, 122, 123-25, 136-37, 139, 141-42, 151-55, 157, 158, 
161, 163, 164, 165-68, 169-71, 172-73, 174-75, 176-80 

United States in Columbia: 123, 125, 126, 128, 129, 137, 142-43 

United States in the Congo: 51-57 

United States in Cuba: 147-48, 155-56, 162-63 

United States in the Dominican Republic: 57-63, 144, 145-46, 147, 161-62, 236-37 

United States in Egypt: 130 

Unites States in Grenada: 241-42 

United States in Guatemala: 165 

United States in Haiti: 133, 159-61 

United States in Hawaii: 133, 134 

United States in Honduras: 144, 148, 149-50, 164, 168-69, 170, 172 

United States in Japan: 126-27, 128 

United States in Korea: 132, 135-36 

United States in Lebanon: 42, 45-49, 238 

265 



Forcible Protection of Nationals Abroad 



United States in Liberia: 243 

United States in Mexico: 130, 158 

United States in Morocco: 146-47 

United States in Nicaragua: 120, 135, 137-38, 140, 144, 149, 156-57, 174, 175-76 

United States in Panama: 123, 125, 126, 128, 129, 137, 142-43, 144-45, 147, 173, 
242-43 

United States in Peru: 118, 119 

United States in Russia: 163-64 

United States in Samoa: 132, 140-41 

United States in Soviet Union: 163-64 

United States in Syria: 144 

United States in Turkey: 157 

United States in Uruguay: 122-23, 124, 127 

used as an excuse for political and/or economic intervention: 26, 35-36, 62-63, 100, 101, 
237, 242-43, 248 

in Zaire: 100-101, 106-07 
Formosa: 16 
France: 2, 36, 41, 42, 43, 99, 163, 236, 237, 239, 243, 247 

action against Mexico: 10, 15-16, 26-27 

and Argentina: 119 

blockade of Argentina ports: 10, 25-26 

and the Central African Republic: 108 

and Chad: 101-02, 103, 105 

and China: 31-32, 137, 169, 171, 172-73 

and Egypt: 10, 11, 29-30, 234-35 

and Gabon: 103-04 

and Haiti: 159, 160 

and Japan: 127, 128 

and Mauritania: 99-100, 101, 103, 239-40 

and the Ottoman Empire: 11, 34-35 

and Panama: 142-43 

and Portugal: 30-3 1 

and Rwanda: 104-05, 107 

and Turkey: 32-33, 157 

and Zaire: 100-101, 105-07 
Friedmann: 63 

Frolinat (front de liberation rationale du Tchad): 99-100 
Fulbright, William: 62-63 



Gabon: 103-04, 108 
Galena, USS: 131 
Galley, Robert: 102 
Garcia: 137 

Garibaldi, Giuseppe: 17 
Garnet, R.: 44 



266 



Index 



Gbenye, Christophe: 50, 51 

Germantown: 122-23 

Germany: 16, 31-32, 33, 36-37, 107, 130, 132, 137, 140, 149-50, 157, 159, 161 

Ghotbzadeh: 65 

Gilmer, Commander W. W.: 149 

Godfrain, M. Jacques: 108 

Gold Star, USS: 174-75 

Gomez, Jose Miguel: 155 

Gona'ives, Haiti: 160 

Gonzalez, General: 130 

Gowland, Daniel: 117 

Great Britain: 36, 43, 99, 146, 237, 243, 247 

and Abyssinia; 9, 27-28 

action against Mexico: 15-16, 26-27 

and Argentina: 25, 26, 119 

and China: 31-32, 120-21, 123-24, 137, 163, 167, 169, 172-73, 174, 176, 177, 178-79 

and Corfu: 33-34 

and Egypt: 10, 11, 29-30, 97, 98, 130, 234-35 

and Honduras: 29, 149-50 

and Iran: 233-34 

and Japan: 127, 128 

and Nicaragua: 137-38, 140 

and the Ottoman Empire: 1 1 

and Palmerston Circular of 1848: 8 

and Panama: 125, 142-43 

reply to the King of Prussia (1753): 7 

and Russia: 163 

and Samoa: 140-41 

and the Suez Canal: 29-30, 43, 97, 98 

and Turkey: 157 

and Uruguay: 24 

and Venezuela: 16, 33 
Greece 

conflicts with Turkey: 10, 167 

and Corfu: 18-19, 34 

early law: 1-2 
Grenada: 241-42, 248 
Grenada, Nicaragua: 175 
Greytown, Nicaragua: 120, 121-22 
Grotius, H.: 1-3, 4, 7, 8, 20 
Grundy: 51, 55 

Guantanamo Bay, Cuba: 155-56 
Guardia Nacional de Nicaragua: 176 
Guatemala: 165 

Guatemala City, Guatemala: 165 
Guiringaud, Louis de: 101, 102, 103 
Gutierrez, General Lopez: 164 

267 



Forcible Protection of Nationals Abroad 



H 

Habre, Hissene: 105 

Habyarimana: 104 

Hackett Medical College: 180 

Haig Reserve School: 171 

Haiti: 133, 159-61 

Hall, William Edward: 231-32 

Hancock, USS: 159-60 

Hankow, China: 152, 172-73, 176, 179 

Harriet: 117 

Havana, Cuba: 147-48 

Hawaii: 129-30, 133, 134 

Hay, John: 146-47 

Helena, USS: 153 

Henry VIII: 189 

Hindmarsh, A.: 18-19, 34, 36 

Hiogo, Japan: 125-26 

Hobard, Earle: 177-78 

Hodges, Henry: 13-14 

Hollins, Commander: 121, 122 

Homer: 2 

Honduras: 16, 29, 144, 148, 149-50, 164, 168-69, 170, 172 

Honolulu, Hawaii: 134 

Hostages 

Americans held as: 50-57, 63-73, 240-41 

attempted rescues of: 65-73, 240-41 

Belgians held as: 50-57 

British subjects held as: 50-52 

Egyptians held as: 240 

French held as: 99-100, 103-04, 239-40 

Indians held as: 50-51, 52, 53 

Italians held as: 50-52 

Israelis held as: 238-39 

Pakistanis held as: 50-51, 52, 53 

rescues of: 523-57, 103-04, 238-40 

taken in the Congo: 50-57 

taken in Gabon: 103-04 

taken in Iran: 63-73, 240-41 

taken in Mauritania: 99-100, 239-40 

taken in Morocco: 146-47 
Human rights violations: 247, 249 
Humanitarian missions: 230, 235-36 

in the Congo: 52-53, 54-55, 57, 99 

in Iran: 66 

in Mauritania: 100 

and the Spanish- American War: 138-39 



268 



Index 



in Rwanda: 104-05 

in Zaire: 106 
Huron, USS: 166, 167, 171 
Hyde, Charles Cheney: 16, 32 



Ichang, China: 175, 176 

Iliad: 2 

Impressment of sailors: 189 

India: 158, 233 

International Committee of the Red Cross: 51 

International Court of Justice: 64-65, 67-68, 71, 240 

International Defense Force (in China): 172 

International Export Company: 161, 172 

International law, principles of justifying a state's protection of nationals abroad. See Right of 

forcible protection and international law; United Nations Charter. 
Iowa, USS: 142 

Iran: 63-73, 233-34, 240-41, 248 
Iraq: 45-46, 48, 233 
Iroquois, USS: 126, 127 
Isabel, USS: 179 
Ismail: 30 

Israel: 41, 67, 97, 234-35, 238-39, 248 

Italy: 16, 18-19, 31, 33-34, 99, 107, 127, 128, 137, 157, 169, 241 
Izmir, Turkey: 167 

J 

Jackson, Jesse: 230 

Jamestown, USS: 126 

Japan: 18-19, 31, 35-36, 108, 126-27, 128, 136-37, 139, 141, 158, 163, 167, 169, 172-73, 

174, 177, 178, 180 
Jimenez, Juan Isidro: 161-62 
John D.Ford, USS: 172, 179 
Johnson, Lyndon B.: 52, 57-58, 60, 61-63 
Johnson, Prince: 243 
Johnson Administration: 58 
Johnson Doctrine: 62 
Joint Chiefs of Staff: 65 
Jones, Lieutenant Commander Hilary P.: 147 
Jouett, Admiral: 131-32 
Justice, denial of, as basis for protection of citizens abroad: 1-2, 4-5, 7, 9, 11, 13-14 

269 



Forcible Protection of Nationals Abroad 



K 



Kansas, USS: 160 

Kanza, Thomas: 51 

Karlsbad Program: 36 

Katanga: 49-50, 98-99, 100-101, 105-06 

Kautz, Rear Admiral Albert: 140 

Kearsarge, USS: 133 

Kellogg-Briand Pact of 1928: 36 

Kelly, Commodore: 120 

Kennedy Administration: 57-58 

Kentucky Island, China: 157 

Kerr: 46 

Khomeini, Ayatollah: 64, 70, 240 

Kigali, Rwanda: 104, 107 

Kindu, the Congo: 50, 51 

Kinshasa, Zaire: 105, 106-07 

Kisembo, Angola: 125 

Kiukiang, China: 154, 164, 173, 174, 176 

Kolwezi, Zaire: 100-101, 105-06 

Korea: 132, 135-36, 146 

Kuan, China: 167 

Kutwo: 176 



La Ceiba, Honduras: 148, 150, 168, 169, 170, 172 

La Curva, Honduras: 164 

Lackawanna, USS: 130 

Laguna, Honduras: 148, 164 

Lakeside, China: 165 

Larnaca, Cyprus: 240 

Latin America, U.S. intervention in: 15. See also particular countries. 

Law of Nations: 12 

be Suchet: 142-43 

League of Nations: 34, 35-36, 42 

Lebanon: 42^9, 108, 238, 248 

Leblanc, Admiral: 25 

Legal Aspects of the Beirut Landing, by Potter: 47-48 

Leprette, M. Jacques: 100 

Letters-of-marque: 2, 198, 200, 201-02 

Levant: 123-24 

Levell, Dr.: 165 

Lexington: 117 

Li Yuan-hung: 157, 166 

Liao River: 136 

Liberia: 243, 248 



270 



Index 



Libreville, Gabon: 103-04 
Liliukalani, Queen of Hawaii: 134 
Lillich, Richard B.: 229, 243, 245 
Lima, Peru: 118 
Lloyd, Selwyn: 98, 235 
Lodge, Henry Cabot: 46 
Lumumba: 99 

Lynch, Cmdr. W. F.: 122-23 
Lytton Commission: 35-36 



M 



Machang, China: 166, 167 

Machias, USS: 136, 142, 143 

Madriz, Jose: 149 

Malietoa Tanu: 140-41 

Malik, Charles: 44-45 

Managua, Nicaragua: 156, 157, 166, 174, 175 

Manchu Dynasty: 151 

Manchuria: 18-19,35-36, 170-71 

Marblehead, USS: 135 

Marcy, Secretary of State: 121 

Marietta, USS: 140, 148-50 

Marion, USS: 125 

Martens: 104 

Masii Island, China: 168 

Mataafa: 132, 140-41 

Matachin, Panama: 131-32 

Matamoros, Mexico: 130 

Mauritania: 99-101, 103, 239-40, 247-48 

Maximilian, Archduke Ferdinand, of Austria: 10, 27 

Maximo J eraz: 149 

Mayaguez: 67, 237, 248 

Mazapon, Honduras: 169 

McCalla, Commanderr: 132 

McClintock, Robert: 46 

McCrea, Lieutenant Commander: 142, 143 

McDougal, Myers: 247 

McKeever, Commodore Isaac: 118, 119 

McKinley, William: 138-39 

Mello, Admiral: 134-35 

Mena, General Luis: 156 

Merchant vessels, protection of: 203, 206, 208, 210, 212, 214, 215, 217, 218, 221, 225, 237 

Merewether, Col. W. L: 28 

Mervine, Commodore: 123 

Methodist missions: 154 

Mexico: 10, 15-16, 26-27, 130, 158 

271 



Forcible Protection of Nationals Abroad 



Miller, William: 64 
Millon, Charles: 108 
Missionaries 

murdered in China: 141 

murdered in the Congo: 5 1 

protection of: 13-14, 135-36, 151-52, 154, 165-66, 168 
Mississippi, USS: 124-25 
Mobutu: 106-07 
Monocacy, USS: 127, 137 
Monroe Doctrine: 15 
Monrovia, Liberia: 243 
Monte Cristi, Dominican Republic: 162 
Monterey, USS: 154 

Montevideo, Uruguay: 122-23, 124, 127 
Moore, John Bassett: 12 
Morocco: 146-47 
Morozow, Judge: 68-69 
Morrison, Herbert: 233 
Mukden, China: 35 

Munich agreement of 30 September 1938: 36 
Murphy, Robert: 47, 48-49 
Muslims in Lebanon: 42-43 
Mussolini, Benito: 34, 229 
Mytilini: 32-33 

N 

Nagasaki, Japan: 127 

Nanda: 63 

Nanking, China: 152, 153, 155, 161, 172, 177-79 

Nantai, China: 168 

Napier, Robert: 28 

Napoleon: 10 

Nasser, Gamal: 43 

National Command Authority: 224, 225 

Nationals in foreign countries 

diplomatic protection of: 8, 9, 10, 11, 12, 14, 18, 30, 32, 33, 36, 65 

domiciliary: 8, 11,29-30 

transient: 8, 1 1 
Naval force, right to use to protect nationals abroad: 13, 14-15, 16, 18-19. See also United States 

Navy Regulations. 
Navassa Island: 133 
Navassa Phosphate Company: 133 

Navy of The United Colonies of North America, Rules for the Regulation of The (1775): 190 
Navy of the United States, An Act for The Government of the: 190 
Nawa, Vice Admiral: 158 
N'Djamena, Chad: 102, 103, 105 



272 



Index 



Nesselrode, Prince: 9-10 

Nestor: 2 

Netherlands: 107, 128, 177 

New Orleans, Louisiana: 10 

New Orleans, USS: 153, 164 

New York: 146 

Neward, USS: 142 

Newchwang, China: 136 

Niagara, USS: 165 

Nicaragua: 15, 16, 120, 121-22, 135, 137-38, 140, 144, 148, 149, 156-57, 166, 174, 175-76 

Nicholson, Admiral: 157 

Nicholson, Lieutenant: 123 

Niigata, Japan: 128 

Nimitz, USS: 65-66 

Ning-Po, China: 122 

Niobe: 29 

Nipe Bay, Cuba: 155 

Nipsic, USS: 132 

Noa, USS: 177-79 

Noriega, Manuel: 242 

North Atlantic Treaty Organization (NATO): 16 

Norway: 140 



o 



Obregoso: 118 

Offutt, Milton: 17-18 

Olivier, M.: 102 

Omoa, Honduras: 29 

Oneida, USS: 126 

Operation Almandin II: 108 

Operation Just Cause: 242-43 

Operation Lamentin: 100, 101 

Operation Requin: 104 

Operation Tacaud: 02 

Operation Urgent Fury: 241 

Oppenheim, L.: 12, 18 

Oregon, USS: 142 

Oreste: 159 

Organization of African Unity: 54-56 

Ad Hod Commission on the Congo: 5 1 
Organization of American States (OAS): 57, 61, 62 
Organization of Eastern Caribbean States: 242 
Ottoman Empire: 11, 34-35, 42 



273 



Forcible Protection of Nationals Abroad 



Pacific Mail Line: 131 

Pacific Squadron: 123, 140 

Paducah, USS: 148, 149 

Pagoda, China: 168 

Palestinians: 238-39, 248 

Palma, Thomas Estrade: 147-48 

Palmerston Circular of 1848: 8, 10 

Panama: 123, 125, 126, 128, 129, 131-32, 137, 142-43, 144-45, 147, 173, 242-43, 248 

Panama Canal: 145, 173 

Panama City, Panama 125, 131-32, 142-43, 173 

Panama Railroad: 125, 129, 131-32, 142-43, 145 

Panther, USS: 143 

Pao Ting Fu, China: 32 

Patasse, Felix: 108 

Paulis, the Congo: 50, 52, 56 

Pearl Lagoon, Nicaragua: 175 

Peking, China: 31-32, 137, 139, 141-42, 152, 154, 166, 167, 170-71 

Pelew Islands: 14 

Pendleton, John S.: 119 

Penobscot, USS: 128 

Perdicaris, Ion: 146-47, 229 

Perry, Commodore Matthew C: 120 

Peru: 118, 119 

Petrel, USS: 136 

Philadelphia, USS: 140-41 

Philippine Division: 152 

Phillimore, R.: 7-8 

Pierce, Franklin: 122 

Piscatagua, USS: 128 

Plowden, Walter: 27-28 

Plymouth: 120 

Poland: 99 

Pompey, USS: 155 

Potential injury, right of a State to protect citizens abroad against: 2, 235 

Port-au-Prince, Haiti: 159, 160 

Port-de-Paix, Haiti: 159 

Port-Gentil, Gabon: 103 

Porter, Cmdr. William D.: 125 

Portsmouth: 123-24 

Portugal and France: 30-31 

Portuguese Railway Company: 30-3 1 

Portuguese West Africa: 125 

Potter: 47-48 

Pradier-Fodere, F.: 11, 18,30 

Prestan: 131 

Preston, USS: 178 



274 



Index 

Prinzapulka, Nicaragua: 175 

Property rights and State's right of forcible protection: 10, 33, 138 

Prussia: 127, 128 

Prussia, King of: 7 

Pruyn, Robert H.: 126 

Puerto Cabezas, Nicaragua: 175 

Puerto Cortes, Honduras: 144, 148, 150, 164, 169 

Puerto Plata, Dominican Republic: 146 

Puntas Arenas, Nicaragua: 120, 121 



Q 



Qubain, F.: 46-47 
Quiros, USS: 161, 165 



R 



Railroads, U.S. intervention to protect in Panama: 125, 129, 131-32, 142-43, 145 

Rainbow, USS: 157 

Raisuli, Sherif Mulai: 146-47, 229 

Rama, Nicaragua: 175 

Rassam, Hormuzd: 28 

Regulations and Instructions Relating to His Majesty's Service at Sea (1772): 188-89, 190, 191, 

199 
Reid Cabral, Donald: 58-59 
Reisman, Michael: 241, 245, 247 
Remedial measures open to a protecting State: 1-2 
Rendjambe, Joseph: 103 
Reprisals: 12, 19, 35, 141, 199, 202 
Retortion: 12, 199 
Reyes, General John P.: 140 
Richardson Construction Company: 158 
Right of forcible protection 

acceptable measures that may be taken: 14 

and Accioly: 19-20 

and Arend: 230, 242, 244-45, 247 

and Beck: 230, 242, 244-45, 247 

and Bluntschli: 8-9 

and Bonfils: 10 

and Borchard: 14-15 

and Clark: 13 

counter-restrictionist theory: 243-44, 245-49 

criteria for exercise of: 4-5, 7, 9, 12, 18, 98, 231-32, 235, 239, 247 

and Dunn: 18 

and Fauchille: 15-16 

Grotius and: 2-3, 4 

and Hindmarsh: 18-19 

275 



Forcible Protection of Nationals Abroad 



historical development of the concept of: 1-5, 230-33 

and Hodges: 13-14 

and Hyde: 16 

and international law: 8, 9, 13, 14-16, 17-19, 20, 28, 29, 32, 41-42, 47-49, 62-63, 67-73, 
97, 98, 187-88, 232-33, 234-35, 236, 239, 241, 242,243-49 

and Moore: 12 

andOffutt: 17-18 

and Oppenheim: 12 

potential abuses of: 18-19, 36-37, 63, 70-71, 98 

and Pradier-Fodere: 1 1 

restrictionist theory: 243-45 

and Stockton: 12-13 

and Vattel: 3 

andWinfield: 16-17 

and Wolff: 3 
Rio de Janeiro, Brazil: 134-35 
Rio Grande Bar, Nicaragua: 175 
Rizal, USS: 167-68 
Robeson, George M.: 198 
Rochester, USS: 170 
Roman Empire: 2, 4 
Ronzitti, N.: 69 

Roosevelt, Franklin D.: 142, 161 
Roosevelt, Theodore: 146-48, 229 
Royalist, VMS: 140-41 
Rules for the Regulation of The Navy of The United Colonies of North America (1775): 188, 

190 
Russia: 31, 137,157 
Russian Island: 164 
Russian Revolution of 1917: 163 
Russo-Japanese War: 146 
Rwanda: 104-05, 107 



Sacasa, Roberto: 135 

Sacramento, USS: 171 

Said, Mohammed: 29 

St. Lawrence, USS: 124 

St. Louis, Falkland Islands: 117 

Saint-Marc, Haiti: 160 

St. Mary's, USS: 125, 126 

Salaverry, General: 118 

Sam, Vilburn Guillaume: 150 

Samar, USS: 164 

Samoa: 132, 140-41 

San Francisco, USS: 133, 144 



276 



Index 



San Isidro Air Force Base : Dominican Republic: 59, 60, 61 

San Jacinto, USS: 124 

San Juan del Norte, Nicaragua: 120, 121-22, 140 

San Juan del Sue, Nicaragua: 138 

San Lorenzo, Honduras: 169 

San Pedro, Honduras: 148, 150 

Sandwich Islands: 129-30 

Santiago, Dominican Republic: 162 

Santo Domingo, Dominican Republic: 58, 59, 60, 63, 144, 146, 147, 161-62 

Saratoga, USS: 154 

Saxons: 2 

Schachter, O.: 69, 70-71,72 

Schwarzenberg, Prince: 9-10 

Scorpion, USS: 147, 157 

Second Expeditionary Force: 171 

Secretary of the Navy: 154, 188, 193, 194, 198, 200, 203, 205, 207, 209, 211, 213, 216, 218, 

219,220,224,225 
Senegal: 108, 239-40 
Seoul, Korea: 132, 135-36, 146 
Seward, William: 11-12 
Seymour, Admiral: 3 1 

Shanghai, China: 120-21, 122, 124-25, 158, 166, 169-71, 176, 177, 178, 180 
Shanghai Volunteer Corps: 169 
Shark: 119 

Shenandoah, USS: 127 

Ship transportation, U.S. protection of in Panama: 128, 129 
Shu-cheng, General Pi: 177 
Siciliy: 17 

Sino-Japanese War: 135-37, 139 
Slater, J.: 59, 60 
Smyrna: 167 

Solari, Admiral Emilio: 34 
South Manchurian Railway: 35 
Sovereign, rights of the: 2-5 
Soviet Union: 43-44, 64, 99, 163-64, 243 
Spain 

action against Mexico: 10, 15-16, 26-27 

and China: 137 

and the Spanish-American War: 138-39 
Spanish- American Iron Works: 155 
Spanish- American War: 138-39 
Standard Fruit and Steamship Company 168 
Standard Oil Company: 152, 177-78, 179 
Stanleyville, the Congo: 50-51, 52, 53, 54, 56, 57 

State responsibility to protect citizens abroad: 1-2, 3, 4, 9, 10, 11, 17-18, 20, 99, 231-32, 233 
Steedman, Admiral: 129 
Stein: 67-68, 71 

277 



Forcible Protection of Nationals Abroad 



Stevens, John H.: 134 

Stevenson, Adlai: 51, 52, 55-56, 57, 236 

Stewart, USS: 173 

Stimson, Henry: 176 

Stockton, Charles H.: 12-13 

Stracber, General: 29 

Strauss, Admiral: 167 

Sudetenland: 36-37 

Suez Canal: 29-30, 43, 97, 98, 234-35 

Sugar plantations: 148 

Sun Yat-sun: 151 

Supply, USS: 153 

Sutherland, Admiral: 156 

Swatow, China: 154, 161 

Sweden: 140 

Swink, Captain Roy C: 166 

Syria: 34-35, 42, 43, 44, 144 



Tacoma, USS: 149-50, 159, 165 

Taft, William Howard: 147-48 

Taku, China: 31-32, 152, 154, 166, 180 

Tamasese: 132 

Tangier, Morocco: 146 

Tarazi, Judge: 69 

Tarquins: 2 

Tegucigalpa, Honduras: 168, 169 

Tehran, Iran: 63-64, 66 

Tela, Honduras: 168, 170 

Tellini, General Enrico: 34 

Terrorist operations: 238-39, 240, 245 

Thailand: 237 

Theodore: 159, 160 

Theodore, Emperor of Abyssinia: 27-28 

Tientsin, China: 31-32, 136-37, 139, 142, 154, 167, 170-71, 173, 179-80 

Tindemans: 101 

Tokyo, Japan: 126 

Toncontin, Honduras: 169 

Torres, Colonel: 145 

Trujillo, Honduras: 148 

Trujillo, Rafael: 57 

TsaoKun: 169, 170 

Tshisekedi: 106 

Tshombe, Moise: 50, 54, 55 

Tuan, Marshal: 170-71 

Tungchow, China: 166, 167, 170 

278 



Index 



Tungshan, China: 168 
Tunisia: 99 

Turkey: 10, 14, 32, 33, 157, 167 
Tuscarora, USS: 129-30 
Tyntuke Bay, Russia: 164 
Tyre: 2 



u 



Uganda: 104, 238-39, 248 
United Arab Republic: 44-45 
United Nations: 16, 244 

Commission of Inquiry: 65 

and Dominican Republic: 62 

multinational force in Rwanda: 107 

Secretary General: 237, 240 
United Nations Charter: 41, 223, 232-33, 235, 239, 243, 244, 247, 248-49 

Article 2(4): 36-37, 41-42, 48, 68, 69, 187, 233, 244, 245-46, 249 

Article 39: 64, 98 

Article 40: 98 

Article 41: 64, 98 

Article 51: 41-42, 46, 47, 48, 66-67, 68, 69, 73, 97, 98, 103, 187, 235, 237, 241, 244-45, 
246-47, 249 

Chapter VII: 246, 247 
United Nations General Assembly 

meetings: 234 

Resolution on the Definition of Aggression: 239 

votes: 242 
United Nations Observation Group in Lebanon (UNOGIL) 45 
United Nations Operation in the Congo (ONUC): 49-50, 236 
United Nations Security Council 

and the Congo: 49-50, 51, 52, 53, 55-56, 98-99, 235-36 

and Egypt: 234-35 

and Entebbe: 239 

failure to act: 244, 245, 247, 248-49 

and forcible protection of nationals: 130, 239, 241, 243 

and Iran: 64, 66, 67 

and Israel: 239 

and Lebanon: 44-45, 46 

and Mauritania: 100 

and Panama: 243 

Resolution 872: 107 
United Province of Rio de la Plata: 25 
U.S. consulates 

guards for: 18, 119, 120-21, 122, 126, 127, 130, 132, 133-34, 135-37, 139, 140-42, 
144, 146-48, 152, 153, 156, 157, 159, 161-62, 163, 165, 166, 167-68, 170, 
177-78, 180 

279 



Forcible Protection of Nationals Abroad 



U.S. Department of the Navy: 145, 214-15, 217 
U.S. Department of State 

and Cuba: 155 

and the Dominican Republic: 59 

and Haiti: 159-60 

and Lebanon: 45 

and Nicaragua: 175 

and rescue of hostages in the Congo: 52 

and right to forcibly protect nationals abroad: 13 
United States Intervention in Lebanon, The, by Wright: 48 
U.S. Naval Station, Guantanamo Bay, Cuba: 155-56, 163 
United States Navy Regulations: 187, 189 

1802: 191 

1814: 192, 193 

1818: 192-93 

1821:93-94, 196 

1841: 194 

1853: 194-95 

1858: 195 

1863: 195-96, 197 

1865: 196-97, 199 

1869: 197-200, 201-02, 204-05 

1870: 200-202, 204-05 

1876: 202, 204-05, 206 

1893: 203-06, 208, 219 

1896:206-08,210 

1900 and 1905: 208-10, 212 

1909: 210-12, 214, 215 

1913:212-15,217 

1920:215-17,219,220 

1948: 204, 217-20, 221, 222, 223 

1973: 187, 188, 220-23, 225-26 

1990: 187, 188, 198-99, 223-26 
Upshur, USS: 165 
Urena, Rafael Molina: 58, 60 
Uruguay: 122-23, 124, 127 
Usbecks: 4 



Valparaiso, Chile: 133-34 

Vattel,E.: 1,3-5,8,11,20,231,232 

Venezuela: 16, 33 

Vera Cruz, Mexico: 26, 27 

Vernet, Louis: 117 

Victor Emmanuel II: 17 



280 



Index 



Victoria, Queen of England: 28 
Vladivostok, Russia: 163, 164 



w 



Waldcock: 245 

Waldheim, Kurt: 100 

Washington, USS: 160 

Weissman, S.: 57 

Wessin, General Wessin y: 59, 60 

Western Sahara: 239-40, 247-48. See also Mauritania. 

Westlake,J.: 11-12 

Wheeling, USS: 159 

Wigny, M. Pierre: 99 

Williams, J. E.: 178 

Wilson, Huntington: 156 

Winfield: 16-17 

Wingfield, Thomas C: 229 

Wisconsin, USS: 143 

Wolff, C: 1,3,20 

Wolsey, HMS: 178, 179 

Wolverine, HMS: 179 

Woodfred, Cuba: 155 

Woolsey, Commodore M. T.: 118 

Woosung, China: 124-25, 153 

World War I: 33-34 

Wright: 47, 48 

Wuchang, China: 151-52 

Wuchow, China: 165 

Wuchow People's Mission Hospital: 165 

Wuhu, China: 152, 153 



Yangtze Valley, China: 170-71, 172 
Yedo (Tokyo), Japan: 125 
Yenkow, China: 136 
Yingtze, China: 136 
Yochow, China: 154, 165 
Yokohama, Japan: 127, 128 
Yorktown, USS: 136 
Young: 50 

Yu-hsiang, Feng: 171 
YuanShinkai: 151, 157 



281 



Forcible Protection of Nationals Abroad 



Zaire: 49-57, 100-101, 105-07 

Zamor, General: 159 

Zelaya, Jose Santos: 135, 137-38, 140, 156 

Zouerate, Mauritania: 99-100, 101 



282