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\S3 UNITED NATIONS PEACEKEEPING: THE
EFTECTIVENESS OF THE LEGAL FRAMEWORK
/ 4, G 74/7; P 31/2
Jnited Nations Peacekeeping: The Ef.
I
HEARING
BEFORE THE
LEGISLATION AND NATIONAL
SECURITY SUBCOMMITTEE
OF THE
COMMITTEE ON
GOVERNMENT OPERATIONS
HOUSE OP REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
MARCH 3, 1994
Printed for the use of the Committee on Government Operations
La
U.S. GOVERNMENT PRINTING OFFICE
80-807 CC WASraNGTON : 1994
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-044691-0
UNITED NATIONS PEACEKEEPING: THE
EFTECTIVENESS OF THE LEGAL FRAMEWORK
Y4.G74/7:P 31/2
United Nations Peacekeeping: The Ef...
HEAKING
BEFORE THE
LEGISLATION AND NATIONAL
SECURITY SUBCOMMITTEE
OF THE
COMMITTEE ON
GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
MARCH 3, 1994
Printed for the use of the Committee on Government Operations
U.S. GOVERNMENT PRINTING OFFICE
80-807 CC WASHINGTON : 1994
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-044691-0
COMMITTEE ON GOVERNMENT OPERATIONS
JOHN CONYERS,
CARDISS COLLINS, Illinois
HENRY A. WAXMAN, California
MIKE SYNAR, Oklahoma
STEPHEN L. NEAL, North Carolina
TOM LANTOS, California
MAJOR R. OWENS, New York
EDOLPHUS TOWNS, New York
JOHN M. SPRATT, Jr., South Carolina
GARY A. CONDIT, California
COLLIN C. PETERSON, Minnesota
KAREN L. THURMAN, Florida
BOBBY L. RUSH, Illinois
CAROLYN B. MALONEY, New York
THOMAS M. BARRETT, Wisconsin
DONALD M. PAYNE, New Jersey
FLOYD H. FLAKE, New York
JAMES A. HAYES, Louisiana
CRAIG A. WASHINGTON, Texas
BARBARA-ROSE COLLINS, Michigan
CORRINE BROWN, Florida
MARJORIE MARGOLIES-MEZVINSKY,
Pennsylvania
LYNN C. WOOLSEY, California
GENE GREEN, Texas
BART STUPAK, Michigan
JR.
. Michigan, Chairman
WILLIAM F. CLINGER, Jr., Pennsylvania
AL McCANDLESS, California
J. DENNIS HASTERT, Illinois
JON L. KYL, Arizona
CHRISTOPHER SHAYS, Connecticut
STEVEN SCHIFF, New Mexico
C. CHRISTOPHER COX, California
CRAIG THOMAS, Wyoming
ILEANA ROS-LEHTINEN, Florida
DICK ZIMMER, New Jereey
WILLIAM H. ZELIFF, Jr., New Hampshire
JOHN M. McHUGH, New York
STEPHEN HORN, California
DEBORAH PRYCE, Ohio
JOHN L. MICA, Florida
ROB PORTMAN, Ohio
BERNARD SANDERS, Vermont
(Independent)
Julian Epstein, Sta/f Director
Matthew R. Fletcher, Minority Staff Director
Legislation and National Security Subcommittee
JOHN CONYERS, JR., Michigan, Chairman
CARDISS COLLINS, Illinois AL McCANDLESS, California
STEPHEN L. NEAL, North Carolina WILLIAM F. CLINGER, Jr., Pennsylvania
CAROLYN B. MALONEY, New York JON L. KYL, Arizona
TOM LANTOS, California DICK ZIMMER, New Jersey
CORRINE BROWN, Florida
c
James C. Turner, Staff Director
Miranda G. KatSOYANNIS, Professional Staff Member
Cheryl a. Phelps, Professional Staff Member
Eric M. THORSON, Professional Staff Member
Bennie B. Wiluams, Clerk
Cheryl G. Matcho, Clerk
RosAUNO Burke-Alexander, Staff Assistant
L. Stephan Vincze, Minority Professional Staff
(11)
CONTENTS
Page
Hearing held on March 3, 1994 1
Statement of:
Bolton, John R., Esq., former Assistant Secretaiy, International Organi-
zation Affairs, U.S. Department of State 49
Comrers, Hon. John, Jr., a Representative in Congress from the State
of Michigan, and chairman, Legislation and National Security Sub-
committee: Opening statement 1
Oilman, Hon. Benjamin A., a Representative in Congress from the State
of New York 16
Harper, Conrad K., Esq., legal adviser, U.S. Department of State, accom-
panied by John H. McNeill, Esq., senior deputy general counsel. Inter-
national Affairs and InteUigence, U.S. Department of Defense; and
David J. Schefler, Esq., senior advisor and counsel. United States Per-
manent Representative to the United Nations 34
. Hyde, Hon. Heniy J., a Representative in Congress from the State of
Illinois 22
Luck, Edweird C, president and chief executive officer. United Nations
Association of the U.SA 68
McCain, Hon. John, a Senator in Congress from the State of Arizona 8
Rostow, Eugene V., professor of law and diplomacy. National Defense
University 80
Turner, Robert F., associate director. Center for National Security Law,
School of Law, University of Virginia 105
Letters, statements, etc., submitted for the record by:
Bolton, John R., Esq., former Assistant Secretary, International Organi-
zation Affairs, U.S. Department of State: Prepared statement 51
Oilman, Hon. Benjamin A., a Representative in Congress from the State
of New York: Prepared statement 18
Harper, Conrad K., Esq., legal adviser, U.S. Department of State: Pre-
pared statement 38
Hyde, Hon. Heniy J., a Representative in Congress from the State of
Illinois: Prepared statement 25
Luck, Edward C, president and chief executive officer. United Nations
Association of the U.SA.: Prepared statement 72
Maloney, Hon. Carolyn B., a Representative in Congress from the State
of New York: Prepared statement 7
McCain, Hon. John, a Senator in Congress from the State of Arizona:
Prepared statement 11
Rostow, Eugene V., professor of law and diplomacy. National Defense
University: Prepared statement 84
Turner, Robert F., associate director. Center for National Security Law,
School of Law, University of Virginia: Prepared statement 108
APPENDIX
Material submitted for the hearing record 187
Mr. Conrad Harper's responses to Chairman John Conyers' followup
questions 187
Mr. John Bolton's responses to Chairman John Conyers' followup ques-
tions 199
Mr. Edward Luck's responses to Chairman John Conyers' followup ques-
tions 206
Professor Eugene Rostow's responses to Chairman John Conyers' followup
questions 215
Mr. Conrad Harper's responses to minority's followup questions 217
(III)
IV
Page
Material submitted for the hearing record — Continued
Statement for the record by United Nations Secretary General Boutros
Boutros-Ghali 227
Januanr 26, 1993, John Bolton article from the Wall Street Journal
entitled, "No Expansion for UJ»J. Security Council" 228
August 30, 1993, Jeanne Kiritpatrick article from the Washington Post
entitled, "Where Is Our Foreign Policy?" 229
October 8, 1993, Conrad K. Harper speech entitled, "Advising the Govern-
ment on National Security Law: A Roundtable Discussion of General
Counsels" 230
December 1993, Henry A. Kissinger article from the Washington Post
entitled, "Recipe for Chaos" 239
January 31, 1994, United Nations Association of the United States of
America report entitled, "When Diplomacy Fails: Russian-American
Proposals for United Nations Military Action" 240
January/February 1994 John R. Bolton article from Foreign Afiairs enti-
tled, "Wrong Turn in Somalia" 265
February 5, 1994, annual peacekeeping costs graph prepared by Jane's
Defense Weekly 277
February 28, 1994, Rowland Evans and Robert Novak article from the
Washington Post entitled, "Russia After Sarajevo" 278
UNITED NATIONS PEACEKEEPING: THE EFFECTIVENESS
OF THE LEGAL FRAMEWORK
THURSDAY, MARCH 3, 1994
House of Representatives,
Legislation and National Security Subcommittee
OF the Committee on Government Operations,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in room
2154, Raybum House Office Building, Hon. John Conyers, Jr.
(chairman of the subcommittee) presiding.
Members present: Representatives John Conyers, Jr., William F.
dinger, Jr., Al McCandless, and Jon L. 1^1,
Subcommittee staff present: James C. Turner, staff director;
Miranda G. Katsoyannis, professional staff member; Cheryl G.
Matcho, clerk; and L. Stephan Vincze, minority professional staff.
Full committee staff present: Julian Epstein, staff director.
OPENING STATEMENT OF CHAIRMAN CONYERS
Mr, Conyers. Good morning, ladies and gentlemen. Legislation
and National Security Subcommittee on Government Operations
will come to order. I'm delighted to see our distinguished colleagues
present to begin the hearings.
We meet to address the effectiveness of the legal structure gov-
erning United Nations peacekeeping operations in the post-cold
war era, and I extend my appreciation to Al McCandless for calling
this issue to our attention and proposing the hearing that is taking
place today.
The challenges of today's world are different from those faced by
the United Nations when it first began conducting peacekeeping
operations. The cold war is over. The threat of the nuclear holo-
caust has receded, and old adversaries are now trying to work to-
gether.
As encouraging as those developments are, the end of the cold
war has also presented us with a new and different set of chal-
lenges, especially in the area of peacekeeping. Explosive regional
conflicts have pulled the United Nations in many different direc-
tions, placing tremendous strains on it and our limited resources.
In the post-cold war era, more peacekeeping operations have
been implemented than ever before. A mere 13 such missions were
established in the 40-year period between 1948 and 1987. In con-
trast, 18 peacekeeping operations were established in the 6-year
period from 1988 to 1993.
Not only has the United Nations been called upon to respond to
a greater number of conflicts, but the nature and scope of United
(1)
Nations peacekeeping operations have become increasingly com-
plex. It has evolved from the traditional approach of observing and
monitoring cease-fires to a more active role of demobilizing fac-
tions, repatriating refugees, ensuring human and political rights,
organizing free elections, and using force only when necessary to
restore and maintain peace.
Although the United Nations's peacekeeping role has dramati-
cally expanded, the overall framework for the United Nations oper-
ation has remained largely unchanged.
This hearing will focus on this fundamental question, and here's
the fundamental question: Does the current legal structure in the
form of the United Nations Charter and the United Nations Par-
ticipation Act of 1945 provide a sufficient and workable framework
to conduct effective peacekeeping operations for the demands of the
21st century?
We recognize that the administration is in the process of shaping
a post-cold war policy which more accurately addresses these new
global realities.
We've invited representatives from the State Department, the
Department of Defense, the United Nation Representative's Office
to share with us what they can about the evolving policies that per-
tain to the legal structure governing United Nations peacekeeping
operations.
This hearing has been rescheduled several times, and the rank-
ing minority member and I are well aware of the sensitivity of the
ongoing events in Bosnia. However, because our bipartisan inquiry
into the effectiveness of the legal framework for peacekeeping oper-
ations does not involve the day-to-day policy questions that must
be addressed in Bosnia, we have agreed that this hearing is appro-
priate and timely.
And so I look forward to hearing from our witnesses, and invite
our ranking member, Mr. Al McCandless of California, to make any
comments.
Mr. McCandless. Thank you, Mr. Chairman. On October 15,
1993, I urged that this subcommittee hold hearings on the issue of
United States participation in United Nations peacekeeping oper-
ations. It had become tragically obvious that our Nation, the Unit-
ed Nations, and other nations of the world were floundering in an
exasperating quandary called peacekeeping.
Like quicksand, peacekeeping seemed to swallow any United Na-
tions member who would step into it, lacking any solid, definable
limits that would allow a nation to step out.
The traditional and generally successful use of peacekeeping was
as a noncoercive instrument of conflict control used to perform non-
military functions in an impartial manner. Recently it's evolved
into the violent, combat-type actions experienced in Somalia. The
fierce October firefight in Mogadishu punctuated this reality with
the blood of our brave soldiers, killing 18 and wounding 84.
Today, with the recent downing of four Serbian planes over
Bosnia, we are once again on the brink of combat in the name of
peacekeeping.
As an oversight subcommittee, we have the responsibility to hold
a hearing that squarely addresses the problems surroimding peace-
keeping by posing fundamental questions to recognized experts and
administration omcials.
As a former Marine, I believe in stating and starting with basics.
Clearly, peacekeeping, as we have known it for the past year or so,
hasn't worked. We need to ask why.
The answer to that question directly affects the lives of our brave
men and women in the military and the setting of national foreign
policy objectives. The goal here today is to engender a dynamic,
fair, open, bipartisan — I repeat that—bipartisan exchange of ideas,
a great national dialog, to use the President's words. We hope to
galvanize the minds of our leaders in government and academia in
solving this vexing problem.
Accordingly, in this overall context of asking the basic question
of why peacekeeping isn't working, we will focus on the legal
framework for United Nations peacekeeping activities; namely, the
United Nations Charter and the United Nations Participation Act.
We recognize, however, that this framework, as all jurisprudence,
is merely a guide and not a substitute to actions and decisions.
Nevertheless, the continued viability, vitality, and flexibility of
this framework contribute to the quality of peacekeeping actions
and decisions. Our Nation's leaders often first look to this frame-
work to determine the limits of our country's role in peacekeeping.
In a very real sense, these legal guide posts are where peacekeep-
ing decisions begin.
It is appropriate, then, for us, in trying to find the answer of why
peacekeeping isn't working, to begin here, as well. The United Na-
tions Charter and the United Nations Participation Act were en-
acted nearly 50 years ago under vastly different historical condi-
tions from today. This legal framework warrants a fresh look to see
whether it or other factors lies at the core of our current peace-
keeping problems.
Literally, a life and death topic, peacekeeping arouses strong
emotions, and it should, for the lives of the people whom peace-
keepers try to protect and the lives of the peacekeepers themselves
are equally precious.
As the leaders and representatives of our country, however, we
have a responsibility to our citizens to understand clearly the rea-
sons that may compel us to risk the lives of our young men and
women. And when we place our brave soldiers in harm's way, we
must maximize their probability for success and minimize their
risk of failure.
Clearly, with regard to recent peacekeeping missions, we have
failed to do so. Despite the Clinton administration's recent best ef-
forts to address this peacekeeping dilemma through Presidential
decision directive No. 13, all of us can learn and do a great deal
more.
Accordingly, I thank the chairman for his cooperation in schedul-
ing this hearing and look forward to hearing from our most distin-
guished group of witnesses here today. Thank you, Mr. Chairman.
Mr. CoNYERS. Thank you very much, Al. I'd now like to recognize
the gentleman from Pennsylvania, who has helped us in many re-
spects. We're pleased that he's able to be with us, even though it's
snowing harder there than it is here. Bill dinger, from Pennsylva-
nia.
Mr. Clinger. Thank you, Mr. Chairman. I join in the peacekeep-
ing concerns which you and Mr. McCandless have raised and thank
you for holding this hearing.
Peacekeeping is indeed a growth industry that keeps getting
larger, more dangerous, and more costly by the day. The chart over
here, graphically, I think, illustrates just how much peacekeeping
costs grew for the United Nations in 1993. According to Jane's De-
fense Weekly, from which this chart was taken, the estimated
United Nations peacekeeping costs for 1993 alone were $3.6 billion,
more than double the 1992 cost and nearly equal to all United Na-
tions peacekeeping costs since 1986,
The United States owes nearlv $200 million of this peacekeeping
bill. With an estimated defense budget gap between $20 billion and
$100 billion, it's hard to understand how we can afford these in-
creasing costs without hurting our own military readiness.
Western and developing nations alike are questioning the wis-
dom of investing these massive sums of money into United Nations
peacekeeping operations, and I think we need to assess whether
peacekeeping costs, in financial and human terms, are becoming
too high relative to increasingly questionable returns.
These recent questionable results should not invalidate the genu-
ine good that noncoercive peacekeeping has accomplished in the
past. Rather, we need to reexamine, as this hearing has proposed
to do, what peacekeeping has come to mean today. We should ask
whether we need to define peacekeeping more precisely and set
limits to it. And, if not, we need to ask whether other factors, such
as the lack of a clear peacekeeping policy and strong executive
leadership, has caused our troubles.
Certainly, however, the current Jello-like nature of the meaning
of peacekeeping may pose significant dangers for the future. For
example, are we comfortable with the notion of Russian "peace-
keeping" in the Ukraine or in Kazakhstan to protect Russian mi-
norities?
In an article in this past Monday's Washington Post, Rowland
Evans and Robert Novak depict this chilling scenario as a real dan-
ger. They suggest that peacekeeping, to the Russians, means Unit-
ed Nations-sanctioned peacekeeping as defined by Moscow.
Clearly, whether one agrees with Novak or not, the lack of a
clear, common understanding of peacekeeping generates serious
concern. To many observers during the past year, peacekeeping has
been a synonym for United Nations-led multilateralism; that is.
United Nations-initiated, United Nations-led but mostly United
States-supplied.
On this issue, I share the views of two of our Nation's most dis-
tinguished foreign policy thinkers, former Secretary of State Dr.
Henry Kissinger and former Ambassador to the United Nations,
Dr. Jeanne Kirkpatrick.
Each of them agrees that our own national interest must be our
first consideration when we discuss peacekeeping or the use of our
armed forces. Certainly we should continue to support multilateral
efforts that promote peace and stability in the world, but, in the
process, we cannot abdicate our first and primary responsibility —
the safety and well-being of our own citizens.
All of us in public service, regardless of our party affiliation,
share and accept this responsibility with equal solemnity. So I en-
courage my colleagues in both parties to join together in coming to
grips with an issue that will be with us for some time: What should
America's role be in United Nations peacekeeping operations?
Accordingly, Mr. Chairman, I welcome this hearing as a first step
in answering that question, and look forward to hearing the views
and opinions of our very distinguished guests £ind witnesses today.
Thank you, Mr. Chairman.
Mr. CoNYERS. Thank you, Mr. dinger. The gentleman from Ari-
zona and member of the Armed Services Committee, Jon Kyi.
Mr. Kyl. Thank you, Mr. Chairman, and I welcome the panel of
witnesses here, too, a distinguished panel, including our colleagues,
Mr. Hyde and Mr. Oilman, policy leaders in this body, and, of
course, my colleague from Arizona, John McCain, a Senator who
serves on the Senate Armed Services Committee and is acknowl-
edged as one of the most knowledgeable defense experts in our
country.
Mr. Chairman, recent missteps by the Clinton administration, in
the name of peacekeeping, have caused Americans to reassess our
country's role in such operations. While Americans remain willing
to do our part to help those in need and to maintain a stable,
peaceful world, we recoil from unnecessary sacrifice of our soldiers,
sailors, airmen, and Marines.
Unfortunately, our current policy, as tragic events in Somalia,
Bosnia, and Haiti graphically illustrated, has been ill defined and
ineffective.
Perhaps of greatest concern regarding our Nation's role in peace-
keeping operations is the issue of placing American forces under
United Nations command. Quite simply, I think it's a bad idea.
In 1918, during World War I, Gen. John Pershing set a precedent
that U.S. soldiers should remain in large units under U.S. com-
mand. The historical success of that precedent dictates that we
heed this lesson of history.
The Clinton administration, however, is reportedly still consider-
ing changing this precedent by allowing the placement of United
States forces under United Nations command for peacekeeping op-
erations as a matter of formal United States policy. I find this par-
ticularly disturbing when, in addition to the overwhelming histori-
cal evidence. Secretary of State Christopher himself has said, "The
United Nations is not a bureaucracy you can turn things over to
and depend on."
Yet the Clinton administration appears willing to turn over the
lives of American service members to the United Nations. Before
even thinking about placing United States troops under United Na-
tions command, the administration must come to grips with two
basic questions. Why would the United States want to put troops
under United Nations command? In other words, before committing
United States troops to any United Nations operation, the Presi-
dent must be able to justify such commitment in terms of United
States interests.
And second, how could we protect such troops and guarantee our
vital interests if legally under the command of another?
I appreciate your scheduling this hearing, Mr. Chairman, and
look forward to the testimony.
Mr. CONYERS. Thank you very much, Mr. Kyi. The gentlelady
from New York, Mrs. Maloney, has a statement that will be en-
tered into the record without objection.
[The prepared statement of Mrs. Maloney follows:]
CAROLYN B MALONEY
Mth OiSTBrcT, New York
COMMITTEE ON BANKING. FINANCE
ANO URBAN AFFAIRS
COMMITTEE ON
GOVERNMENT OPERATIONS
CONGfifSSIONAl CAUCUS
ON WOMfNS ISSUES
EXECUTIVE COMMtTTEt
CONGRESSIONAL ARTS CAUCUS
EXECUTIVE COMMITTEE
Congregg of tfje Winitth ^tattsi
^ouac of iRcpreaentatibejf
aaagljington. 3SC 20515-3214
WASHtNCTON OFfiCt
tS04 Longwodth Building
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REP. CAROLYN MALONfEY -- OPENING STATEMENT
LEGISLATION AND NATIONAL SECURITY HEARING ON:
THE LEGAL FRAMEWORK FOR OPERATIONS OF UN PEACE-KEEPERS
Thank you Mr. Chairman,
requesting this timely hearing.
And thank you Mr. McCandless for
The UN currently has peace-keeping forces in Somalia, Haiti, the
former Yugoslavia, Cambodia and many the other countries around the
world. The scale and number of these operations has increased
dramatically since the end of the Cold War.
The question of whether the current legal framework, as defined in
the U.N. Charter and the U.N. Participation Act of 1945, is sufficient for
this expanded role is therefore one which needs to be addressed.
Hopefiilly, we here today will be able to answer some of the questions
surrounding this issue.
I would be particularly glad to hear from our panelists their views on
the role that Congress should play in authorizing U.S. troops for U.N. or
multi-national peace-keeping operations.
I welcome Senator McCain and Reps. Oilman and Hyde. You are
all distinguished Congressional scholars in the area of foreign affairs and
I look forward to hearing your views on this important topic.
Thank you Mr. Chairman.
printed on RECtCltO PAI^Pl
8
Mr. CoNYERS. All of the witnesses' statements, including our col-
leagues', will be reported in the record of this hearing in their en-
tirety,
I'm delighted to welcome Senator McCain of Arizona, a member
of the Armed Services Committee, with a naval background, who
has been committed to these related subject matters that bring us
here this morning. We know that he is a very concerned and in-
formed person on peacekeeping issues and we d like him to begin
our testimony today. We're delighted to have you here this morn-
ing. Senator.
STATEMENT OF HON. JOHN MCCAIN, A SENATOR IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. McCain. Thank you very much, Mr. Chairman. It's very
pleasant for me to be back witn my old friends, and I appreciate
the opportunity. And Mr. Chairman, also appreciate that my entire
statement will be made part of the record.
I see that you have a very impressive list of witnesses and a lot
of them, and 111 try to make my remarks relatively brief, although,
as you know, that's difficult for someone who works where I work.
Thank you, Mr. Chairman.
And I also want to point out that I believe that this hearing
today, although it may have been planned some weeks in advance,
is entirely appropriate and perhaps some sense of urgency is lent
to it, in light of the fact that just a few days ago the first NATO
military action in history, the downing of the four Serbian aircraft,
was conducted.
It's a historic military first. This morning's news reports provide
disturbing news that perhaps there has been a reescalation — ^per-
haps, I emphasize — a reescalation of military conflict in Bosnia, in
that very tragic country.
So as I know the chairman's views are that Congress has a con-
stitutional obligation to play a role in these kinds of decisions and
formulation of policy concerning where young Americans' lives may
be committed. I want to congratulate you for holding the hearing
and emphasize, at least from this person's point of view, how im-
portant it is.
First of all, Mr. Chairman, there are multiple interpretations of
what peacekeeping is, and its more advanced form, peacemaking.
It apparently means something different in three countries — Soma-
lia, Haiti, and Bosnia — where the United States role and its appli-
cation was debated by the Senate recently. And it apparently
means something different in the United Nations Secretariat than
it does in the United States Department of State.
This is a fundamental definitional question which must be clari-
fied if we're going to make an effort to clarify United States partici-
pation in United Nations operations.
Mr. Chairman, I'd like to point out that we should not depart
from the criteria of U.S. military involvement under any cir-
cumstances. And as the chairman and members of this committee
well know, the overriding rule against which the use of force must
be measured is that of U.S. national interest. With few exceptions,
American troops should not be ordered into conflict for any purpose
unless our vital national interests are threatened.
Second, there must be a clearly stated objective. As this commit-
tee well knows, there are peacekeeping operations that have been
going on for as long as 40 years, which entail the involvement of
many nations' troops.
Third, the commitment of American soldiers must be of limited
duration, with a stated and achievable exit strategy.
Fourth, and perhaps most importantly of all, Mr. Chairman, the
reasons for sending U.S. troops into a conflict must be readily ex-
plainable to the American people and a majority of American public
opinion should exist in support of any operation.
We ought to be very clear that the responsibilities incumbent
upon the American commander in chief who commits our forces to
an enterprise are no different in a peacekeeping mission than they
are when we use force to repel an attack on ourselves or our allies.
Mr. Chairman, the Congress, I believe, must play a role, and I
think it's an important role. And I believe that the War Powers Act
needs to be revisited. Time after time, we in Congress have basi-
cally ducked our responsibilities under the War Powers Act. We've
given lip service to it or we have been in outright violation of it.
As a nonsupporter of the War Powers Act, it seems to me that
the Congress should follow the laws which it passes for itself, as
well as the rest of the American people. I believe it's appropriate
for both bodies of Congress to reopen a debate.
I don't support strengthening the provisions regarding congres-
sional authorization, and I don't support legislation which would
prospectively circumscribe or preclude American leadership on
other foreign policy problems before the President's policies were
developed and implemented.
I do, however, believe that, while respecting the President's au-
thority as commander in chief, the Congress is not enjoined from
correcting the President's policies when it finds those policies to be
poorly reasoned.
As you know, Mr. Chairman, PDD-13, which was developed with
very little participation of the Congress, is moving forward. I would
suggest that this committee carefully scrutinize PDD-13, since it
will be a blueprint for further involvement.
I'm strongly opposed to committing United States forces to a
standing army under the control of the United Nations. I have seri-
ous doubts about the wisdom of even considering a decision to place
American troops under the operational command of foreign military
personnel in a United Nations-led mission.
Let me give two illustrations in closing, Mr. Chairman, of the
complexity and confusion that reigns in this situation. I refer to a
Reuters news report dated February 28, 1994. It includes a quote
attributed to United Nations Special Envoy Yasushi Akashi with
respect to the downing of the Serbian aircraft earlier this week.
Akashi is quoted as saying, "I hope this was an isolated incident.
We were only later informed about it."
If the United Nations Special Envoy is reluctant to take military
action to enforce the United Nations's own resolutions, how can the
United States possibly consider placing our troops under a United
Nations commander?
In the Washington Post, perhaps more importantly, Mr. Chair-
man, of February 18, 1994, Department of Defense spokesperson
10
Kathleen de Laski is quoted about the chain of command for air
strikes, as follows.
The request for air strikes could come from either the United Nations or from
NATO. These two chains would work together to make a recommendation to the
United Nations, to the political side, and that's where the authorization would come
from. (
Mr. Chairman, I'm totally confused by that statement. And so
were the AmericEui people. Clearly we need to have that clarified.
I did want to mention, I think that's a very important item that
Mr. dinger brought up, and that is that we're pajdng 31.5 percent
of that bill, according to the requirements of the United Nations.
We know that part of that bill will come out of the Department
of Defense budget, which is shrinking. Obviously, that's an entirely
separate issue, but it's one that I think we can't ignore.
Committing American resources to a conflict, oy which I mean
the lives of American troops and the finances required to support
them, is a national decision which should not be relegated or re-
ferred, even in part, to an international body.
Let me thank you for this opportunity, Mr. Chairman, and I hope
that on the Senate side, we will begin hearings along these lines
and come up with conclusions and perhaps work together, since the
American people have every right to expect us to play a role in this
very difficult and complex decisionmaking process.
I thank you, Mr. Chairman.
[The prepared statement of Mr. McCain follows:]
11
STATEMENT OF SENATOR JOPIN MCCAIN
BEFORE THE HOUSE GOVERNMENT OPERATIONS
SUBCOMMITTEE ON LEGISLATION AND NATIONAL SECURITY
ON
U.S. PARTICIPATION IN U.N. PEACEKEEPING OPERATIONS
March 3, 1994
Thank you. Chairman Conyers, Congressman McCandless, and
members of the Subcommittee, for the opportunity to address an
issue of increasing concern to policymakers and to the American
people--U.S. participation in United Nations peacekeeping
operations .
While the principal focus of tais Committee's work is the
adequacy of the existing legal framework for such participation,
I would like to provide a broad, cautionary backdrop to the
committee's deliberations. I hope my comments will be useful to
you as you study this issue of such importance to the conduct of
our nation's foreign policy.
The tragic events last October in Somalia raised the issue
of United States participation in United Nations peacekeeping
operations to a matter of intense national interest. The Senate
has since engaged in several deeply divided debates over the
question of U.S. military participation in U.N. peacekeeping
operations and, more importantly, our nation's rules of
engagement for committing U.S. forces into harm's way in such
operations. The escalation of tensions in Bosnia, with NATO's
downing of four Serbian aircraft this week, has heightened the
urgency of reaching a consensus on a coherent, effective strategy
for protecting U.S. interests and promoting U.S. values abroad
amidst the confusion and challenges of a changing world.
Conflict between the Executive and Congress over the course
of U.S. foreign policy is always a serious matter. It undermines
the force of U.S influence in the world, confuses our allies, and
tempts our adversaries. The Administration could better avoid
these troubling consequences by consulting more closely with
Congress in formulating its policies.
In this spirit, let me offer one Senator's views about when
the United States should take the extraordinary step of resorting
to the use of force to execute its foreign policy. Whether we
call it peacekeeping, peacemaking, nation-building, or securing a
stable environment, when we send troops into a conflict for any
purpose, we are using force, with all its attendant risks to
American lives and treasure, to attain -^.n end.
Definitions
There are multiple interpretations of what peacekeeping, and
its more advanced form, peacemaking, mean. It apparently means
something different in the three countries--Somalia, Haiti, and
12
Bosnia--where a U.S. role in its application was debated by the
Senate recently. And it apparently means something different in
the U.N. Secretariat than it does in the U.S. Department of
State. This is a fundamental definitional issue which must be
clarified in any effort to clarify U.S. participation in U.N.
operations .
Criteria for U.S. Involvement
I opposed the deployment of U.S. forces in support of U.N.-
led operations in Somalia, Haiti, and Bosnia. But my opposition
in these instances does not mean that I would oppose any
involvement of U.S. forces in international peacekeeping or
peacemaking operations. Such involvement, however, like any
American use of force, should be used sparingly, only when our
vital interests coincide with other member nations; only under
terms governing the extent of their use which reflect differences
in the degree that member states' national interests are
involved; and only when the President of the United States
determines that the use of American force is guided by the same
criteria that governs our unilateral use of force.
First, the overriding rule against which the use of force
must be measured is that of U.S. national interests. With few
exceptions, American troops should not be ordered into conflict
for any purpose unless our vital national interests are
threatened, and unless all other means of protecting those
interests have failed or are unavailable.
Second, there must be a clearly stated objective for the use
of U.S. Armed Forces in conflict.
Third, the commitment of American soldiers must be of
limited duration with a stated and achievable exit strategy. It
is incumbent on the President to formulate and articulate a
policy based on a realistic assessment of the risks involved and
the prospects for success in protecting U.S. interests through
the use of force. Then, the President must remain firmly
committed to the military course of action throughout its
duration.
Fourth, the reasons for sending U.S. troops into a conflict
must be readily explainable to the American people, and a
majority of public opinion should exist in support of the
operation. The American people will demand a debate on any
policy which may result in the dispatch of American troops, and
they are right to do so.
We ought to be very clear, then, that the responsibilities
incumbent on the American Commander-in-Chief who commits our
forces to an enterprise are no different in a peacekeeping
mission than they are when we use force to repel an attack on
2
13
ourselves or our allies. Despite changes in the balance of
forces in the world today, despite the emerging new threats to
world peace and the variations on old ones, these
responsibilities remain the most solemn duty of an American
president, and they remain the President's alone.
The Roles of Congress and the President
As a part of the larger debate over the future role of U.S.
forces in U.N. operations, the Senate has also undertaken a
review of the War Powers Resolution. Some wish to strengthen its
provisions regarding Congressional authorization of military
force. I do not support this view.
I do not support legislation intended to prospectively
circumscribe or preclude Administration leadership on other
foreign policy problems before their policies were developed and
implemented. Given the mistakes made in Somalia and Haiti,
members of Congress have well-founded reasons to be concerned
about the Administration's future actions in Bosnia and in
peacekeeping operations elsewhere.
However, no one can foresee all the contingencies which may
emerge that might change my views. The President should not be
prohibited in advance from acting in what he perceives as the
national interest. I have serious reservations about enacting
legislation which is based on the presumption that a President's
foreign policy decisions will be in error or unwise, and that
Congress, in its wisdom, must therefore approve any such
decisions prior to their implementation.
Congress, on the other hand, while respecting the
President's authority as Commander-in-Chief, is not enjoined from
correcting the President's policies when it finds those policies
to be poorly reasoned and recklessly implemented. Instead of
prospectively restricting the President's prerogatives, however.
Congress should have the courage to act swiftly in the exercise
of its own power of the purse in instances when the President's
policy is in conflict with the will of Congress.
The Administration's Policy
Prior to October 3, the Administration was working to
develop a Presidential Decision Directive known as PDD-13, with
very little involvement by the Congress. That policy directive
reportedly would have committed the U.S. to support multilateral
peacekeeping and peacemaking operations politically, financially
and militarily far more extensively than in the past and without
direct control over the use of American troops in the operations.
Last month, the Administration announced a revised version
of PDD-13 which makes significant progress away from the previous
14
policy of "assertive multilateralism". The directive addresses a
number of the major concerns raised by Congress, including some I
have raised today. It appears to recognize that it is in neither
the U.S. interest nor the international community's to subject
U.S. decision-making on grave matters of state, and the lives of
American soldiers, to the frequently vacillating, contradictory,
and reckless collective impulses of the United Nations.
However, three important matters deserve special emphasis.
I am strongly opposed to committing U.S. forces to a
standing army under the control of the U.N. Some have argued
that such a force is essential to the U.N.'s ability to respond
swiftly and effectively to prevent conflicts in rapidly
escalating situations around the world. I think such a force
would encourage more misadventures like the peacekeeping cum
peacemaking cum warlord-hunting operation in Somalia, where the
lines of command are obscure and where ill-defined changes in the
mission occur with every discussion in the Security Council. The
Administration's policy appears to recognize these concerns.
I also have serious doubts about the wisdom of even
considering a decision to place American troops under the
operational command of foreign military personnel in a U.N. -led
mission. The U.S. Armed Forces are the best trained, best
equipped, most effective fighting force in the world. Our troops
deserve the best leadership which is provided, more often than
not, by American officers. This is not arrogance or elitism; it
is simple fact.
Let me briefly note two recent examples that illustrate my
concern about ceding command authority to the United Nations.
A Reuters news report dated February 28, 1994, includes a
quote attributed to U.N. special envoy Yasushi Akashi with
respect to the downing of the Serbian aircraft earlier this week.
Akashi is quoted as saying: "I hope this was an isolated
incident .. .We were only later informed about it...." If the
U.N.'s special envoy is so reluctant to take military action to
enforce the U.N.'s own resolutions, how can the United States
possibly consider placing our troops under a U.N. commander who
may or may not be able or willing to make militarily sound
decisions in a battlefield situation--decisions which could mean
life or death to American soldiers?
And in the Washington Post of February 18, 1994, DOD
spokesperson Kathleen de Laski is quoted about the chain of
command for airstrikes as follows: "...[T]he request for
airstrikes could come from either the U.N....or from
NATO. . . .These two chains would work together to make a
recommendation. .. to the U.N., to the political side. And that's
where the authorization would come from." [emphasis added] Thus,
4
15
it appears that the authority to order military action in Bosnia
rests with the U.N., not with the President, not with the U.S.
Secretary of Defense, not with our American military commander in
the theater. In my view, these are some of the issues you should
consider very carefully in studying thus volatile issue.
Finally, with deficit reduction at the top of the Congress'
and the Administration's agenda, the skyrocketing costs of U.N.
peacekeeping operations should be a major cause of concern.
According to the February 1994 issue of Jane's Defence Weekly, in
1992, the U.N. spent almost three times the amount spent in any
prior year on peacekeeping operations. Last year, the cost
doubled again to $3.6 billion. Charges of mismanagement and
waste at the U.N. were so overwhelming that the Senate recently
approved legislation to create an Inspector General at the United
Nations .
To meet the U.S. share of these costs, which is set at 31.7
percent, the Administration proposes a greater burden on the
Department of Defense. Defense spending has been declining
steadily since 1985. By 1999, the defense budget will have been
cut nearly 45 percent. Out of this shrinking budget, DOD will be
assessed nearly $300 million in 1995 for U.N. peacekeeping
operations, over and above the direct costs to the U.S. military
of participating in some of these operations. The Department of
Defense freely admits that this amount is insufficient to pay
these costs, and the additional amounts will likely be taken from
programs which actually contribute to the readiness of our
military forces to protect our national security. This is an
issue which will be closely scrutinized in the Armed Services
Committees as we struggle to prioritize national security
requirements within a severely constrained defense budget.
Conclusion
In the end, I believe my view is the common view shared by
the majority of Americans. Committing American resources to a
conflict--by which I mean the lives of American troops and the
finances required to support them--is a national decision which
should not be relegated or referred even in part to an
international body.
In closing, let me again thank you for this opportunity to
contribute to your discussion on this very important question,
for the decisions we make today will determine our ability to
remain in the 21st century as important a force for good in world
affairs as we were in the 20th.
16
Mr. CoNYERS. Thank you very much, Senator McCain. Your cau-
tionary remarks are well received by the committee and we'll be
looking forward to continuing to working together. We appreciate
your appearance here today.
Mr. McCain. Thank you.
Mr. CoNYERS. May I turn now to the ranking minority member
of the House Foreign Affairs Committee, the Honorable Benjamin
Oilman from New York, a good friend of ours and the committee,
who has been the primary spokesperson on foreign policy for his
party. He's also a former congressional delegate to the United Na-
tions.
And I just wanted to acknowledge, Ben, the tremendous efforts
that you've extended on behalf of Dr. Vill Mirzayanov, the Russian
chemist, who's been released from custody by the Russian state.
You were outstanding in this matter and many other efforts around
the world, issues that we have worked together on.
I'm delighted that you're here today and we'd like your observa-
tions, under the time constraints that we have, about United Na-
tions peacekeeping. We're delighted to see you.
STATEMENT OF HON. BENJAMIN A. GILMAN, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF NEW YORK
Mr. Oilman. Thank you, Mr. Chairman. Thank you for your kind
words. My colleagues on the committee, I appreciate the oppor-
tunity to come before you today to discuss our U.S. involvement in
international peacekeeping operations. I'm pleased to join my col-
league, Congressman Henry Hyde, the gentleman frt m Illinois, and
Senator McCain, who you've just heard from.
Let me underscore at the outset that I don't think there's been
anything inevitable about the growth over the last year or so of
peacekeeping operations, particularly so-called peacemaking oper-
ations under chapter VII of the United Nations Charter.
That growth has resulted primarily from a conscious policy of
putting America's treasure and might at the disposal of inter-
national organizations like the United Nations in order to contain
conflicts and minimize human suffering around the world.
The Clinton administration has conveniently supplied a label for
our new policy called "assertive multilateralism." I believe we're all
sympathetic to the humanitarian impulses that undergird assertive
multilateralism. Oood intentions, however, are no substitute for
sound policy.
There are some important lessons that we can all learn from So-
malia and from other peacekeeping operations. First, our policy to-
ward peacekeeping must be like any other aspect of our foreign pol-
icy. They must be guided, first and foremost, by our own national
security interests. Any policy divorced from a rational calculation
of our national security interests or which assumes that the Amer-
ican people will be prepared to pay a price disproportionate to
those interests is certainly an invitation to failure.
The Clinton administration turned a successful humanitarian
initiative into a policy of nation building in Somalia that was dis-
connected from our national security interests and, unfortunately,
ended in a tragic failure.
17
Second, peacekeeping operations are by no means a low-cost solu-
tion to international stability, and I appreciate what our colleague,
Mr. dinger noted. If we look at the chart that's here about annual
peacekeeping costs, it shows the acceleration in the increase of
peacekeeping costs in the last few years. We have a graphic exam-
ple of just how expensive all of this is.
The United Nations is a highly inefficient organization. I think
most of us recognize that. Much of that inefficiency is inherent in
any international organization, but much of it also results from
poor management, poor planning, piecemeal budgeting, wasteful
procurement, overs taffing, and exorbitant salaries.
In addition, the United States is being asked to foot too much of
the bill. We're currently assessed for 25 percent of the regular
United Nations budget, but the United Nations bills us for 31.7
percent of the cost of peacekeeping operations.
During the height of the cold war, we had strategic reasons for
caring about stability in faraway places, but today other nations
generally have a greater interest in controlling conflicts in their
own neighborhoods than we do. Accordingly, our Nation no longer
should be called on to pay disproportionately for peacekeeping.
Fourth, we must be very wary of proposals to place our forces
under foreign command. There is a threshold question whether for-
eign command is constitutional under any circumstances, and I've
asked the administration to look further into that question.
The authors of the United Nations Participation Act were wor-
ried about foreign command, and accordingly, they limited United
Nations participation in chapter VI peacekeeping operations to
1,000 troops worldwide. The tragic death of 18 American rangers
on October 3, 1993, underscores the risks associated with foreign
command.
For all these reasons, I think it is appropriate that Congress in-
sist, at a minimum, upon the right to approve the subordination of
our forces to foreign command in chapter VII peace operations.
In order to ensure that our government does not forget some of
the lessons that I've noted, I was proud to join as an original co-
sponsor of H.R. 3744, the Peace Powers Act of 1994, introduced in
the House by our distinguished colleague, the gentleman from Illi-
nois, Mr. Hyde, and in the Senate, by Senator Dole on January 26
of this year.
Rather than reviewing all of its provisions here today, I'll simply
note that it contains a number of proposed amendments to the
United Nations Participation Act designed to address the concerns
that I've identified. We look forward to a favorable consideration of
H.R. 3744 by the House when it comes before our body.
Thank you, Mr. Chairman, and I thank my colleagues.
[The prepared statement of Mr. Oilman follows:]
18
March 3, 1994
Remarks of Congressman Benjamin A. Gilman
Ranking Republican Member, Committee on Foreign Affairs
Before the Subcommittee on Legislation and National Security
Regarding U.S. Involvement in Peacekeeping
Mr Chairman:
I appreciate the opportunity to come before you today to speak about U.S.
involvement in international peacekeeping operations. This is an issue that has become
increasingly important since the Clinton Administration took office thirteen months ago,
and one that increasingly has been on the minds of the American people since the
embarrassments we suffered last fall participating in peacekeeping operations in Somalia
and Haiti.
Let me underscore at the outset that I do not think there has been anything
inevitable about the growth over the last year or so of peacekeeping operations--
particularly so-called "peacemaking" operations under Chapter Vll of the United Nations
Charter, where we intervene to contain or end civil wars. The growth of such operations
has not been a product solely of the end of the Cold War. Rather, it reflects a conscious
policy of putting America's military treasure and might at the disposal of international
organizations like the United Nations in order to contain conflicts and minimize human
suffering around the world.
The Clinton Administration has conveniently supplied a label for this new policy:
"assertive multilateralism."
I am sympathetic to the humanitarian impulses that undergird application of
"assertive multilateralism" to desperate situations like that found in Somalia in 1992. Good
intentions, however, are no substitute for sound policy. The tragic record of our
involvement in Somalia bears this out.
There are many lessons to be learned from Somalia and other recent
peacekeeping operations. Among the most important lessons are the following.
First, our policy toward peacekeeping must be like any other aspect of our
foreign policy: it must be guided first and foremost by our national security
interests. Any policy divorced from a rational calculation of our national security
interests, or which assumes that the American people will be prepared to pay a price
disproportionate to those interests, is an invitation to failure.
This is the biggest lesson of Somalia. Those guiding U.S. policy toward Somalia
knew that we had virtually no national security interest in that country. However, this
Administration turned a successful humanitarian initiative into an exercise of so-called
"nation-building" that was bound to bring our armed forces into conflict with powerful
warlords. It was entirely predictable that if the warlords raised the cost to us enough they
would break the will of the American people to persist in what to us was purely an
19
exercise in international charity. Tragically, that is precisely what happened.
Never again should we put our armed forces in such an untenable situation. In
future peacekeeping operations our government must always make a rational calculation
of our national security interests, and it must not embark on policies that will require of
the American people sacrifices disproportionate to those interests. Our government must
not put our armed forces into hostile situations where we will not have the will to achieve
victory because, when push comes to shove, we will decide that it is not worth paying the
price necessary to achieve victory.
Regrettably, it is not at all clear that the present Administration has learned this
basic lesson. The proposed Presidential Decision-Directive on peacekeeping sets out
criteria for future U.S. support of U.N. "peacemaking" operations. The Directive indicates
that the U.S. will support such operations in situations of "humanitarian disaster coupled
with violence" and "interruption of democracy coupled with violence," for example. These
criteria are, in my estimation, much too open-ended and insufficiently subordinated to
rational calculations of our national security interests. They are an invitation to future
Somalias.
A second major lesson of recent peacekeeping operations is that they are
not a low-cost solution to international Instability. The United Nations is a highly
inefficient organization. Much of this inefficiency is inherent in any international
organization, where all members are going to exact some price for their support of
common operations. But much of it also results from bad management-things like poor
planning, piecemeal budgeting, wasteful procurement, overstaffing, and exorbitant
salaries.
It has been proposed that the United Nations establish an independent office of
inspector general to address these bad management practices. I fully support this
proposal, and the Administration appears to support it as well. But we should not deceive
ourselves into thinking that an inspector general can root out all mismanagement or ever
make U.N. peacekeeping operations inexpensive. Such operations are always going to
be inefficient and costly.
This means that we should not always go to the United Nations as a first resort.
In some cases there may be alternatives. In the Sinai Peninsula, for example, there is a
relatively efficient and cost-effective peacekeeping operation known as the Multinational
Force and Observers that is totally independent of the United Nations. There may be
other places in the world where such independent peacekeeping operations may make
more sense than U.N. peacekeeping operations.
In addition, we must not forget the Desert Storm model when crises emerge that
directly threaten vital U.S. national security interests. Desert Storm was conducted under
a U.N. imprimatur, with critical international participation and ftjnding, but as a practical
matter it was U.S.-organized and U.S.-run. And it worked. I hope that the present
Administration's enthusiasm for the United Nations does not lead it to abandon the Desert
Storm model should a similar crisis emerge during its watch.
/
20
A third major lesson of recent peacekeeping operations is the United States
is being asited to foot too much of the bill. We are currently assesoed for 25% of the
regular U.N. budget, but the U.N. bills us for 31.7% of the cost of its peacekeeping
operations. This billing structure presumably is based on the notion that we have a
stronger interest in containing conflicts around the world than other countries, and
therefore can be expected to pay more of the cost of doing so.
This may have been true in the past, but it certainly is no longer true today. During
the height of the Cold War we had strategic reasons for caring about stability in places
like Somalia, but those reasons evaporated with the end of the Cold War. Today other
countries generally have a greater interest in controlling conflicts in their own
neighborhoods than do we. Accordingly, the United States no longer should be called
on to pay disproportionately for United Nations peacekeeping operations.
This issue is directly relevant to the peacekeeping arrearages we have been
running up with the United Nations, and to the Administration's recent proposal to tap into
the Defense Department budget to pay for some U.N. peacekeeping operations. I cannot
agree to further cuts in our already tight Defense budget to pay for what up until now has
been paid for exclusively out of the State Department budget. We should continue to pay
for U.N. peacekeeping operations out of the State Department budget. If our assessment
is reduced to a more appropriate level, that should relieve the financial pressure that has
led the Administration to propose cutting into our national defense to pay for U.N.
peacekeeping.
A fourth major lesson of recent peacekeeping operations is that we must be
very wary of proposals to place U.S. forces under foreign command. There is a
threshold question whether foreign command is permissible under any circumstances
under the Appointments and Oaths Clauses of the Constitution. I have asked the
Administration to look into this question.
Beyond the issue of the constitutionality of foreign command, it is important to note
that the authors of the U.N. Participation Act were worried about foreign command, and
accordingly they limited U.S. participation in Chapter Vl peacekeeping operations to 1 ,CXX)
troops worldwide. The tragic death of 18 American Rangers on October 3rd, 1993,
underscores the risks associated with foreign command.
For all these reasons, I think it is appropriate for Congress to insist, at a minimum,
that it have the right to approve the subordination of U.S. forces to foreign command in
Chapter VII peace operations.
Some have suggested that any such requirement would infringe the President's
constitutional authority as commander-in-chief. To the contrary, I believe such a
requirement would be a clearly permissible exercise of Congress's authority under Article
I, section 8 of the Constitution 'To make Rules for the Government and Regulation of the
land and naval Forces."
21
In order to ensure that our government does not forget the lessons I have outlined,
I was proud to join as an original cosponsor of H.R. 3744, the "Peace Powers Act of
1994," introduced in the House by Mr. Hyde and in the Senate by Mr. Dole on January
26th of this year. Rather than reviewing all of its provisions here today, I will simply say
that it contains a number of proposed amendments to the U.N. Participation Act designed
to address the concerns I have identified. I look forward to favorable consideration of
H.R. 3744 by the House of Representatives.
22
Mr. CONYERS. Thank you very much, Ben, for your insightful
comments, and it lays a very good foundation for the debate that
will begin very shortly with our witnesses from the administration.
I'm now pleased to turn to Henry Hyde, my colleague on the Ju-
diciary, with whom we've worked across the years on many issues,
most recently on asset forfeiture questions. He has a distinguished
legal career, naval background, serves on both Foreign Affairs and
Judiciary Committees, and we're delighted to receive his comments
today on the subject of the hour. Welcome, Henry,
STATEMENT OF HON. HENRY J. HYDE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Hyde. Mr. Chairman, it's certainly not perfunctory when I
say it's a real pleasure to be here. And to my good friend, Bill
dinger, and counsel, I appreciate this opportunity.
I want to commend you for holding this hearing, exploring one
of the most important issues of the day: the role of the United
States in United Nations peacekeeping operations.
Recent events in Somalia and Haiti and the policies that led to
them cry out for a comprehensive assessment of administration pol-
icy and a review of existing law to ascertain what, if any, changes
may be necessary.
If there is a central foreign policy theme of this administration,
it is the concept of "assertive multilateralism."
We find ourselves no longer subject to the constraints of the cold
war and we see this strain of multilateralism, the inheritors of the
Wilsonian idealism, but they seem intent upon conferring the au-
thority and power to the United Nations to resolve disputes and
conflicts in every corner of the globe.
For this noble purpose, the United Nations is seen as more legiti-
mate than national governments which, in this view, are often
driven by narrow and selfish motivations of national interest and,
free from these base concerns, the reconstituted and strengthened
United Nations would assert itself as a fair and impartial arbiter
to transform the world into a Garden of Eden without the snakes.
To that end, the Clinton administration has, for many months,
been drafting and redrafting Presidential review and decision direc-
tives outlining their policy. Before they are finished, I think a few
words of caution are appropriate. The huge leap from supporting
traditional peacekeeping functions to fostering an expanded, if not
preeminent, peacemaking role for the United Nations, often can be
contrary to tne interests of the United States, and we should view
it with some alarm.
There are many reasons for this. American military forces really
should not be sent into harm's way without clear, acnievable goals
necessary to protect our national interest and with sufficient fire-
power to achieve it.
Now, parenthetically, determining just what our national inter-
est is in any given situation may be the most difficult task of all.
Young Americans should not be asked, however, to sacrifice their
lives tor vague notions such as nation building in Somalia.
Not that nation building in Somalia is not a great and a grand
and even an essential idea, but we are not equipped by training,
by geography, by culture, by a million things, to do every job in the
23
world in every comer of the world and, nation building in Somalia,
it seems to me, was something we were ill-equipped to do.
I don't think we should send troops to hot spots like Haiti with
mere sidearms to protect themselves just because an international
organization has brokered an agreement that says so. They should
not be asked to serve under United Nations command. Our volun-
teers— and all of our people in the armed services are volunteers —
signed up to protect and defend the people of the United States,
Recruitment and retention will surely suffer, if not fail com-
pletely, if our military men and women are frequently asked to risk
their lives for an ethereal international ideal rather than a con-
crete U.S. interest. Our interests do not always coincide with other
United Nations member countries or even with the priorities of the
United Nations Secretary Greneral. They may. They are not always
polarized. But they may not; and that is what we have to recognize.
Events in some regions and countries impact on our national in-
terest much more than in other places. Certainly, when Saddam
Hussein swallowed up Kuwait and threatened to control access to
the world's primary energy supply. President Bush rightly coa-
lesced a multinational force to reverse this aggression but, when
tiny Burundi or distant Tajikistan have a civil war, it is worth ask-
ing whether it is worth risking American lives to try to build de-
mocracy there, desirable as it is — probably not.
In any event, we ought to decide whether our national interests
are sufficiently involved, not the United Nations. In foreign policy,
just as in domestic affairs, we are forced, by limits to our time and
resources, to prioritize our attention to matters of greatest impor-
tance to us. When American lives are to be put at risk, we should
be very stingy and sparing.
At a time when the President intends to shrink the Pentagon
budget by $141 billion over the next 5 vears, the administration
wants to ask our men and women in uniform to take on the broad,
new, expensive and expansive mission of international peace-
making. Given these funding constraints, it will be difficult enough
to maintain our military force readiness for traditional defense pur-
poses. Our Armed Forces need to focus on the essential, not on
someone else's idea of the righteous.
Let me turn to the role Congress needs to play. In my view, the
relationship between the United States and the United Nations
must be clearly defined to reflect the realities of the post-cold war
world. In order to do this. Congress must carefully review and pos-
sibly rewrite the United Nations Participation Act of 1945. Several
issues need to be addressed, and perhaps elsewhere then, in that
legislation.
First, United States Armed Forces should not routinely serve
under United Nations command or operational control. Under no
circumstances should a United Nations standing army be com-
posed, in part or in whole, of United States forces.
Second, any participation by United States Armed Forces in
United Nations operations should not be agreed to or undertaken
before Congress is notified.
Third, the provision of any United Nations peacekeeping funding
or contributions of any kind should not be agreed to before Con-
gress is notified.
24
It has been my experience, particularly when we fund the inter-
national financial institutions, that agreements are made, commit-
ments are made, and then we are made to feel guilty, if we break
our word, that we don't come up with the billions that some admin-
istration bureaucrat — and I say that with affection, not as a pejo-
rative nuance — they have made some commitment to us and we
had better live up to it or we break America's word.
The same thing is true of peacekeeping operations. The United
States currently funds over 30 percent of all peacekeeping costs
and these costs have been rising, as the chart shows, dramatically,
in the past few years. They need to be brought under control. We
need to reduce our percentage and raise that of other contributors
in Asia and Europe to reflect their long-term economic growth.
It is the responsibility of Congress, and particularly the House,
to control the pursestrings of our government. Currently, the exec-
utive branch and the United Nations determine our assessments
for international peacekeeping operations. This must change. We
must be participants in the decision to take on these new funding
commitments. It is unacceptable for the executive branch to unilat-
erally commit funds that we must later appropriate.
In order to address these and other shortcomings in the United
Nations Participation Act, Senator Dole in the Senate and key Re-
publicans in the House, including Ben Oilman, have joined me in
introducing the Peace Powers Act of 1994. The Senate recently
agreed to some elements of this legislation in the form of amend-
ments to the State Department Authorization Act.
Mr. Chairman, I believe Congress urgently needs to work with
the administration to establish the parameters under which the
United States will participate in and fund United Nations peace-
keeping. Furthermore, our government should use its considerable
influence with the United Nations to prevent a proliferation of ad-
venturistic peacekeeping operations which we may well determine
are not in our national interest.
I am not saying that all peacekeeping operations are ill-advised.
I am not saying the United Nations is not a marvelous organiza-
tion that has lasted a long time, has done much great work, essen-
tial work, indispensable work. I am simply saying that we should
not be subordinate to judgments that they make, because the
American people don't want it that way, and no foreign policy can
work or even survive without the support of the American people.
At the very least, we should not provide American personnel and
resources to pursue purposes and goals that are determined by oth-
ers and that may well not be in our national interest.
I thank you, Mr. Chairman.
[The prepared statement of Mr. Hyde follows:]
25
March 3, 1994
Statement of Congressman Henry J. Hyde
on the Role of the United States
in United Nations Peacekeeping
Chairman Conyers, Congressman IVIcCandless,
Members of the subcommittee, I am pleased to be here
today. i want to commend you for holding this hearing to
explore one of the most important issues of the day: the
role of the united states in u.n. peacekeeping operations.
Recent events in Somalia and Haiti, and the policies that
led to them cry out for a comprehensive assessment of
Administration policy and a review of existing law to
ascertain what changes may be necessary.
If there is a central foreign policy theme of the
Clinton Administration it is the concept of "assertive
multilateralism". No longer subject to the constraints
imposed by the cold war, today's multilateralists -
modern-day adherents of wilsonian idealism - are intent
26
ON CONFERRING UPON THE U.N. THE AUTHORITY AND POWER TO
RESOLVE DISPUTES AND CONFLICTS IN EVERY CORNER OF THE
GLOBE. For this noble PURPOSE, THE U.N. IS SEEN AS MORE
LEGITIMATE THAN NATIONAL GOVERNMENTS WHICH ARE OFTEN
DRIVEN BY NARROW AND SELFISH MOTIVATIONS OF NATIONAL
INTEREST. Free from these base considerations, the
RECONSTITUTED AND STRENGTHENED U.N. WOULD ASSERT ITSELF
AS A FAIR AND IMPARTIAL ARBITER TO TRANSFORM THE WORLD
INTO A Garden of Eden without snakes.
To this end, the Clinton Administration has for many
MONTHS BEEN DRAFTING AND REDRAFTING PRESIDENTIAL REVIEW
AND Decision Directives outlining their policy. Before
THEY'RE finished, A FEW WORDS OF CAUTION MUST BE HEARD.
The huge leap from supporting traditional peacekeeping
functions to fostering an expanded - if not preeminent -
peacemaking role for the U.N. OFTEN CAN BE CONTRARY TO
THE INTERESTS OF THE UNITED STATES AND THUS SHOULD BE
27
VIEWED WITH ALARM BY CONGRESS.
There are many reasons for this. American military
forces should not be sent into harm's way without clear,
achievable goals necessary to protect our national
interest and sufficient firepower to achieve it. young
Americans should not be asked to sacrifice their lives for
VAGUE notions SUCH AS NATION-BUILDING IN SOMALIA. NOR
SHOULD THEY BE SENT TO HOT SPOTS LIKE HAITI WITH MERE SIDE
ARMS TO PROTECT THEMSELVES SIMPLY BECAUSE AN
INTERNATIONAL ORGANIZATION BROKERED AN AGREEMENT THAT
SAYS SO. They should not be asked to serve under U.N.
COMMAND. Our volunteer force signed up to protect and
defend the people of the United States. Recruitment and
retention will clearly suffer - if not fail completely - IF
our military men and women are frequently asked to risk
their lives for an ethereal international ideal rather than
a concrete u.s. interest.
28
Our interests do not always coincide with other U.N.
member countries or with the priorities of the u.n.
Secretary General. Events in some regions and countries
impact our interests more than in other places. when
Saddam Hussain swallowed up Kuwait and threatened to
control access to the world's primary energy supply,
President Bush rightly coalesced a multinational force to
reverse this aggression. but when tiny burundi or distant
Tajikistan have a civil war, is it worth risking American
lives to try to build democracy there? probably not -
but in any event we ought to decide whether our national
interests are sufficiently involved - not the u.n.
In foreign POLICY, JUST AS IN DOMESTIC AFFAIRS, WE ARE
FORCED BY LIMITS TO OUR TIME AND RESOURCES TO PRIORITIZE
OUR ATTENTION TO MATTERS OF GREATEST IMPORTANCE TO US.
WHEN AMERICAN LIVES ARE TO BE PUT AT RISK, WE SHOULD BE
VERY STINGY AND SPARING.
29
At a time when the President intends to eviscerate the
Pentagon budget by $141 billion over the next five years,
THE Administration wants to ask our men and women in
UNIFORM TO TAKE ON THE BROAD, NEW -- EXPENSIVE AND
expansive -- MISSION OF INTERNATIONAL PEACEMAKING. GiVEN
these funding constraints, it will be difficult enough to
maintain our military force readiness for traditional
defense purposes. our armed forces need to focus on the
essential, not on someone else's idea of the righteous.
Let me turn to the role Congress needs to play. In
my view, the relationship between the united states and
the united nations must be clearly defined to reflect the
realities of the post-cold war world. in order to do this,
Congress must carefully review and rewrite the U.N.
Participation Act of 1945. Several issues need to be
addressed in this legislation, and perhaps elsewhere.
First, U.S. armed forces should not routinely serve under
30
U.N. COMMAND OR OPERATIONAL CONTROL. UNDER NO
CIRCUMSTANCES SHOULD A U.N. STANDING ARMY BE COMPOSED IN
PART OR IN WHOLE OF U.S. FORCES. SECOND, ANY PARTICIPATION
BY U.S. ARMED FORCES IN U.N. OPERATIONS SHOULD NOT BE
AGREED TO OR UNDERTAKEN BEFORE CONGRESS IS NOTIFIED.
Third, the provision of any U.N. peacekeeping funding or
contributions of any kind should not be agreed to before
Congress is notified.
The United States currently funds over 30% of all
U.N. peacekeeping costs. These costs have been rising
dramatically in the past few years and they need to be
brought under control. we also need to reduce our
percentage and raise that of other contributors in asia
and europe to reflect their long-term economic growth.
It is the RESPONSIBILITY OF CONGRESS - AND PARTICULARLY THE
HOUSE >- TO CONTROL THE PURSE-STRINGS OF OUR GOVERNMENT.
Currently, the Executive Branch and the U.N. determine
6
31
OUR ASSESSMENTS FOR INTERNATIONAL PEACEKEEPING
OPERATIONS. But this must change. We must BE
PARTICIPANTS IN THE DECISION TO TAKE ON THESE NEW FUNDING
COMMITMENTS. IT IS UNACCEPTABLE FOR THE EXECUTIVE BRANCH
TO UNILATERALLY COMMIT FUNDS THAT WE MUST LATER
APPROPRIATE.
In order to address these and other shortcomings in
THE U.N. Participation Act, Republican Leader Robert Dole
IN THE Senate, and key Republicans in the House including
Ben Oilman have joined me in introducing the Peace Powers
Act of 1994. The Senate recently agreed to some
elements of this legislation in the form of amendments to
THE State Department Authorization Act.
Mr. Chairman, I believe Congress urgently needs to
WORK WITH THE ADMINISTRATION TO ESTABLISH THE PARAMETERS
UNDER WHICH THE UNITED STATES WILL PARTICIPATE IN AND FUND
32
U.N. PEACEKEEPING. FURTHERMORE, OUR GOVERNMENT SHOULD
USE ITS CONSIDERABLE INFLUENCE WITH THE U.N. TO PREVENT A
PROLIFERATION OF AOVENTURISTIC PEACEMAKING OPERATIONS
THAT WE DETERMINE ARE NOT IN OUR NATIONAL INTEREST. AT THE
VERY LEAST, WE SHOULD NOT PROVIDE AMERICAN PERSONNEL AND
RESOURCES TO PURSUE SUCH COSTLY FOLLY.
8
33
Mr. Co^fYERS. Thank you very much, Henry Hyde. You both re-
mind me that later on today I am meeting with Larry Pezzulo with
regard to another crisis, the Haitian crisis, and I hope that these
hearings today will bring us closer together in terms of the issues
that have brought us here and I hope that, if you are not in attend-
ance at that meeting, I would like to be in consultation with you
about that crisis, which has attracted my attention because it is
within our hemisphere, it is so close to our shores. I know that both
of you have been very active in that issue, as well.
I thank you for setting the stage for our State Department and
Defense witnesses that will follow you.
Bill, do you have any comments?
Mr. Clinger. No questions. I would just like to thank our col-
leagues for, as you say, setting the framework here for what we are
going to be discussing later today. I think they were very insight-
ful, very thoughtful comments.
Mr. Co^fYERS. Thank you both, sirs. We are now going to start
panel I with officials from the State Department, Defense Depart-
ment, and the United States Representative to the United Nations.
We are delighted that the legal adviser to the State Department,
Mr. Conrad Harper, is here with us.
I would ask him to join us at the table. A former Detroiter, active
with the NAACP Legal Defense Fund and other activities, distin-
guished attorney, and member of the Council on Foreign Relations.
We have with him the senior deputy general counsel of the De-
partment of Defense, John McNeill, who holds the three-star equiv-
alent rank of Deputy Secretary of Defense. We are pleased that he
has joined us at this hearing, because of his responsibility for a
number of international matters, including peacekeeping.
Mr. McNeill is a contributor to many publications, adjunct pro-
fessor of law at Greorgetown Law Center, and a lecturer in inter-
national relations.
We are also pleased that the senior advisor and counsel to the
Honorable Madeleine Albright, our United Nations Representative,
is with us, Mr. David Scheffer. He also is a Georgetown University
Law Center adjunct professor, former senior associate in inter-
national and national security law at the Carnegie Endowment,
and was also a staff member here in our House Foreign Affairs
Committee.
Grentlemen, I think you are the most appropriate people in our
government to begin the discussion that brings us here today and
I am delighted that you could give of your time. We know that
there have been several changes in the scheduling for this hearing
but I think it was well worth it because we have all of you before
us at the same time, and we look forward to hearing from you.
Mr. Harper, we would recognize you with great pleasure at this
time.
34
STATEMENT OF CONRAD K. HARPER, ESQ., LEGAL ADVISER,
U.S. DEPARTMENT OF STATE, ACCOMPANIED BY JOHN H.
MCNEILL, ESQ., SENIOR DEPUTY GENERAL COUNSEL,
INTERNATIONAL AFFAIRS AND INTELLIGENCE, U.S. DE-
PARTMENT OF DEFENSE; AND DAVID J. SCHEFFER, ESQ.,
SENIOR ADVISOR AND COUNSEL, UNITED STATES PERMA-
NENT REPRESENTATIVE TO THE UNITED NATIONS
Mr. Harper. Thank you, Mr. Chairman. I am delighted to be
with you and the members of the committee this morning. With
me, as you have indicated, are John McNeill and David Scheffer
whose identities have been fully given by the chairman, so I shall
not repeat.
The administration recently completed a comprehensive review of
its policy on peace operations. The draft Presidential decision direc-
tive has not yet been signed by the President. Consultations are
continuing with several committees of Congress.
Since most of the draft directive deals with policy issues, let me
refer you. to the appropriate policy officials for answers to detailed
questions about the directive. I snail present the views of the ad-
ministration on the legal framework for United States participation
in peace operations of the United Nations.
To begin with, the United Nations Charter provides an extensive
and flexible international legal framework for the conduct of peace
operations. Chapter VI of the Charter authorizes the Security
Cfouncil to investigate any situation that might endanger the main-
tenance of international peace and security and to make rec-
ommendations for the peaceful resolution of such disputes.
Section 7 of the Charter authorizes the Security Council to deter-
mine the existence of a threat or breach of the peace or act of ag-
gression and to make recommendations or deci(^ on measure of a
mandatory character to restore and maintain the peace. This may
include economic and diplomatic sanctions or a broad range of mili-
tary actions.
The council used chapter VII, for example, for the imposition of
mandatory sanctions on Iraq and Serbia and to authorize the use
of force to enforce its decisions concerning those countries. United
Nations member states are required by the United Nations Charter
to carry out decisions of the council.
Typically, military operations approved by the Security Council
are conducted by the forces of United Nations member states, con-
tributed and organized on an ad hoc basis for each operation.
Operational control may be exercised by Unitea Nations com-
manders—as in the case of UNOSOM in Somalia and UNPROFOR
in Bosnia — or may be exercised by one or more of the states in-
volved— as was the case in the Gulf war and the initial United
States operations in Somalia. Article 43 of the Charter provides for
the possibility of special agreements with United Nations members
to make units of the Armed Forces available on call of the Council,
but no such agreements have ever been concluded.
With respect to United States law, the President has both statu-
tory and constitutional authority to enable the United States to
participate in and support Unitea Nations peace operations. In par-
ticular, under section 6 of the United Nations Participation Act, the
President is authorized to negotiate special agreements with the
35
United Nations Security Council, thereby making units of the Unit-
ed States Armed Forces available to the Council on its call pursu-
ant to article 43 of the United Nations Charter.
Such agreements are subject to the approval of Congress but fur-
ther congressional authorization would not be required for the
President to make forces available pursuant to such an agreement
in a particular case. In practice, of course, no action has ever been
taken under section 6 of the act because no agreements have ever
been concluded under article 43 of the Charter.
Section 7 of the act authorizes the President to provide various
forms of support for United Nations activities that are directed to
the peaceful settlement of disputes and do not involve the employ-
ment of Armed Forces contemplated by section 7 of the Charter.
Among other things, this section authorizes the detail to the Unit-
ed Nations of United States Armed Forces personnel to serve as ob-
servers, guards, or in any noncombatant capacity, up to a total of
1,000 to be so detailed at any one time.
The President is also authorized to furnish facilities, services, or
other assistance from the stocks of the Department of Defense and
to obligate DOD fiinds for the procurement and replacement of
such items. These authorities have been used to provide United
States personnel, supplies, airlift, and other services to support a
number of United Nations peace operations, including those in
Bosnia, Somalia, and Mozambique.
The Foreign Assistance Act, and the annual authorization and
appropriations acts for the foreign assistance program, also provide
important statutory authorities for U.S. participation in peace oper-
ations.
For example, section 551 of the act authorizes the furnishing of
assistance to friendly countries and international organizations, in
amounts provided in annual authorization and appropriations acts,
for peacekeeping operations and other progprams in furtherance of
United States national security interests, whether in the United
Nations or in some other context. This authority is used to fund
voluntary United States contributions to United Nations peace op-
erations.
Section 552 of the act authorizes the President, in the event of
an unforeseen emergency, to direct the drawdown of commodities
and services from any U.S. agency, including DOD, in an aggregate
total of up to $25 million in any fiscal year. Other foreign assist-
ance accounts — such as the disaster assistance, military assistance,
and economic support fund accounts — may also be used, within
their own terms and conditions, to provide assistance that may fa-
cilitate peace operations.
Section 607 of the act authorizes any U.S. agency to furnish serv-
ices and commodities on an advance of funds or reimbursement
basis to friendly countries, international organizations, and others,
to further the purposes of certain portions of the act, which include
the peacekeeping provisions. This permits the United States to pro-
vide goods and services from the stocks of DOD or any other agen-
cy on a reimbursement basis to the United Nations or to states tak-
ing part in a peacekeeping operation. This was done, for example,
in Somalia, to provide United States equipment and other items
with funds contributed by various foreign donors.
36
Further, section 628 of the act authorizes the head of any U.S.
agency to detail, assign, or otherwise make available any of the
personnel of that agency to serve with, or as a member of, the
international staff or such organization, or to render any technical,
scientific, or professional advice or service to, or in cooperation
with, any international organization in furtherance of the purposes
of the act.
For example, this provides authority for detailing DOD personnel
to serve with United Nations peace missions or to provide technical
services on an ad hoc basis. Under section 630, such details can be
provided on either a reimbursable or nonreimbursable basis. This
authority was used to detail DOD logistical personnel to various
United Nations peace operations.
A variety of other statutes contain important authorities that
may permit or facilitate United States participation in or support
for United Nations peace operations. For example, the annual State
Department authorization and appropriations acts provide funds
for this purpose through the contributions to international peace-
keeping activities account — the CIPA account. These funds are
used to pay United States assessed contributions to the United Na-
tions for its peacekeeping operations.
Various provisions of DOD legislation, including the annual DOD
authorization and appropriations acts, also provide useful authori-
ties.
For example, title 10 of the United States Code authorizes the
provision of surplus items for humanitarian relief and the transpor-
tation of such items, authorities that can be used to complement
and support peace operations in a particular country. Likewise,
these acts provide authority for DOD support of disaster relief op-
erations which can provide a supplementary source of assistance in
such countries.
The administration is consulting Congress on its proposed new
policy approach toward management and funding of United States
involvement in United Nations peace operations. These are, of
course, discussions of policy questions that I shall not, therefore,
attempt to describe further in today's proceedings.
In addition to these statutory authorities, the President has inde-
pendent constitutional authority, as commander in chief of the
Armed Forces and as chief executive with responsibility for the con-
duct of United States foreign affairs, to deploy United States forces
to take part in or support United Nations peace operations, when
he considers that to be necessary to protect United States nationals
or other United States national security interests. For example,
this constitutional authority was relied upon in the deployment of
United States forces into Somalia by Presidents Bush and Clinton.
In conducting such operations, the Clinton administration has
committed itself to enhance its briefings and consultations with
Congress on peace operations and to carry out consultations and
reporting, consistent with the war powers resolution.
Finally, Mr. Chairman, in your letter of January 19, 1994, to
Secretary Christopher on the issues to be dealt with in this hear-
ing, you requested our views on several specific questions.
First, you asked whether certain terms relating to peace oper-
ations needed to be defined or clarified as a matter of law. Our re-
37
sponse is that this is not legally necessary. The mandate of the Se-
curity Council for each operation defines its scope and character,
including the mission and command arrangements for the oper-
ation.
It is, of course, useful in general policy discussions to have a
common understanding of the meaning of various terms used. In
this area, we use the term "peacekeeping" to refer to operations
carried out with the consent of the states or other significant par-
ties involved.
These are traditionally noncombat operations — except for the
purpose of self-defense — and are normally undertaken to monitor
and facilitate implementation of an existing truce arrangement and
in support of diplomatic efforts to achieve a political settlement of
the dispute.
We use the term "peace enforcement" to refer to operations in-
volving the use or threat of force to preserve, maintain, or restore
international peace and security or to deal with breaches of the
peace or acts of aggression. These operations are authorized by the
Security Council under section 7 of the Charter and do not require
the consent of the states or other parties involved. We use the term
"peace operations" to refer to the entire scope of peacekeeping and
peace enforcement activities.
Second, you asked whether the United States should enter into
agreements under article 43 of the United Nations Charter to make
forces available at the call of the Security Council. This is, of
course, a policv, rather than a legal, question. As Secretary Chris-
topher stated last week, we do not exclude the possibility of an ar-
ticle 43 type of force down the road but, at this point, it seems
quite remote.
Third, you asked whether and how the United Nations Participa-
tion Act should be amended. Our response is that the administra-
tion does not intend to seek any amendments at this time.
Fourth, you asked whether tnere is an adequate legal fi'amework
to determine what the role of United States military forces will be
in future United Nations peace operations. Our answer is that
there is an adequate legal framework in the United Nations Char-
ter, the relevant United Nations Security Council resolutions, the
United States Constitution, the Foreign Assistance Act, and the
United Nations Participation Act.
The role of United States forces in United Nations peace oper-
ations is a fundamental issue but one of policy, rather than one of
law. This is a central part of the new policy approach currently
under discussion with the Congress.
We would be happy to respond to any questions on legal issues
that the committee may have concerning peace operations. Thank
you, Mr. Chairman.
[The prepared statement of Mr. Harper follows:]
38
STATEMENT OF CONRAD K. HARPER,
Legal Adviser,
Department of State
On LEGAL AUTHORITY FOR UN PEACE OPERATIONS
Before the LEGISLATION AND NATIONAL SECURITY SUBCOhJMITTEE
Of the HOUSE GOVERNMENT OPERATIONS COMMITTEE
March 3, 1994
I am pleased to appear before the Committee today, with me
are John McNeill, Senior Deputy General Counsel, Department of
Defense, and David Scheffer, Senior Adviser and Counsel, Office
of the U.S. Ambassador to the United Nations.
The Administration recently completed a comprehensive
review of its policy on peace operations. The draft
Presidential Decision Directive has not yet been signed by the
President. Consultations are continuing with several
committees of Congress. Since most of the draft Directive
deals with policy issues, let me refer you to the appropriate
policy officials for answers to detailed questions about the
Directive. I shall present the views of the Administration on
the legal framework for U.S. participation in peace operations
of the United Nations.
39
2 -
The UN Charter
To begin with, the United Nations Charter provides an
extensive and flexible international legal framework for the
conduct of peace operations. Chapter VI of the Charter
authorizes the Security Council to investigate any situation
that might endanger the maintenance of international peace and
security and to make recommendations for the peaceful
resolution of such disputes.
Chapter Vll of the Charter authorizes the Security Council
to determine the existence of a threat or breach of the peace
or act of aggression and to make recommendations or decide on
measures of a mandatory character to restore and maintain the
peace. This may include economic and diplomatic sanctions or a
broad range of military actions. The Council used Chapter vil,
for example, for the imposition of mandatory sanctions on Iraq
and Serbia and to authorize the use of force to enforce its
decisions concerning those countries. UN Member States are
required by the UN Charter to carry out decisions of the
Council.
40
3 -
Typically, military operations approved by the Security
Council are conducted by the forces of UN Member States,
contributed and organized on an ad hoc basis for each
operation. Operational control may be exercised by UN
commanders (as in the case of the UNOSOM operation in Somalia
and the UNPROFOR operation in Bosnia), or may be exercised by
one or more of the states involved (as was the case in the Gulf
War and the initial U.S. operations in Somalia). Article 43 of
the Charter provides for the possibility of special agreements
with UN Members to make units of the armed forces available on
the call of the Council, but no such agreements have ever been
concluded.
UN Participation Act
With respect to U.S. law, the President has both statutory
and constitutional authority to enable the United States to
participate in and support UN peace operations. In particular,
under Section 6 of the United Nations Participation Act, the
President is authorized to negotiate special agreements with
the UN Security Council, thereby making units of the U.S. Armed
Forces available to the Council on its call pursuant to Article
43 of the UN Charter. Such agreements are subject to the
approval of Congress, but further Congressional authorization
would not be required for the President to make forces
available pursuant to such an agreement in a particular case.
In practice, of course, no action has ever been taken under
Section 6 of the Act because no agreements have ever been
concluded under Article 43.
41
Section 7 of the Act authorizes the President to provide
various forms of support for UN activities that are directed to
the peaceful settlement of disputes and do not involve the
employment of armed forces contemplated by Chapter VII of the
Charter. Among other things, this section authorizes the
detail to the UN of U.S. Armed Forces personnel to serve as
observers, guards, or in any noncombatant capacity, up to a
total of 1,000 to be so detailed at any one time.
The President is also authorized to furnish facilities,
services, or other assistance from the stocks of the Department
of Defense and to obligate DOD funds for the procurement and
replacement of such items. These authorities have been used to
provide U.S. personnel, supplies, airlift and other services to
support a number of UN peace operations, including those in
Bosnia, Somalia and Mozambique.
Foreign Assistance Act
The Foreign Assistance Act, and the annual authorization
and appropriations acts for the foreign assistance program,
also provide important statutory authorities for U.S.
participation in peace operations. For example. Section 551 of
the Act authorizes the furnishing of assistance to friendly
countries and international organizations, in amounts provided
in annual authorization and appropriations acts, for
peacekeeping operations and other programs in furtherance of
U.S. national security interests, whether in the UN or some
other context. This authority is used to fund voluntary U.S.
contributions to UN peace operations.
42
- 5 -
Section 552 of the Act authorizes the President, in the
event of an unforeseen emergency, to direct the drawdown of
commodities and services from any U.S. agency (including DOD)
in an aggregate total of up to $25 million in any fiscal year.
Other foreign assistance accounts — such as the disaster
assistance, military assistance and economic support fund
accounts — may also be used, within their own terms and
conditions, to provide assistance that may facilitate peace
operations .
Section 607 of the Act authorizes any U.S. agency to
furnish services and commodities on an advance-of-funds or
reimbursement basis to friendly countries, international
organizations and others, to further the purposes of certain
portions of the Act, which include the peacekeeping
provisions. This permits the U.S. to provide goods and
services from the stocks of DOD or any other agency on a
reimbursement basis to the UN or to states taking part in a
peacekeeping operation. This was done, for example, in Somalia
to provide U.S. equipment and other items with funds
contributed by various foreign donors.
43
- 6 -
Further, Section 628 of the Act authorizes the head of any
U.S. agency to detail, assign or otherwise make available any
of the personnel of that agency to serve with, or as a member
of, the international staff of such organization, or to render
any technical, scientific or professional advice or service to,
or in cooperation with, any international organization in
furtherance of the purposes of the Act. For example, this
provides authority for detailing DOD personnel to serve with UN
peace missions or to provide technical services on an ad hoc
basis. Under Section 630, such details can be provided on
either a reimbursable or non-reimbursable basis. This
authority was used to detail DOD logistical personnel to
various UN peace operations.
Other Statutory Authorities
A variety of other statutes contain important authorities
that permit or facilitate U.S. participation in or support for
UN peace operations. For example, the annual State Department
authorization and appropriations acts provide funds for this
purpose through the Contributions to International Peacekeeping
Activities account. These funds are used to pay U.S. assessed
contributions to the UN for its peacekeeping operations.
44
- 7 -
Various provisions of DOD legislation, including the annual
DOD authorization and appropriations acts, also provide useful
authorities. For example. Title 10 of the U.S. Code authorizes
the provision of surplus items for humanitarian relief and the
transportation of such items, authorities that can be used to
complement and support peace operations in a particular
country. Likewise, these acts provide authority for DOD
support of disaster relief operations which can provide a
supplementary source of assistance in such countries.
The Administration is consulting Congress on its proposed
new policy approach toward management and funding of U.S.
involvement in UN peace operations. These are of course
discussions of policy questions that I shall not therefore
attempt to describe further in today's proceedings.
Constitutional Authority
In addition to these statutory authorities, the President
has independent constitutional authority, as Commander-in-Chief
of the Armed Forces and as Chief Executive with responsibility
for the conduct of U.S. foreign affairs, to deploy U.S. forces
to take part in or support UN peace operations, when he
considers that to be necessary to protect U.S. nationals or
other U.S. national security interests. For example, this
constitutional authority was relied upon in the deployment of
U.S. forces into Somalia by Presidents Bush and Clinton.
45
In conducting such operations, the Clinton Administration
has committed itself to enhance its briefing and consultation
with Congress on peace operations and to carry out consultation
and reporting consistent with the War Powers Resolution.
Committee Questions
Finally, Mr. Chairman, in your letter of January 19 to
Secretary Christopher on the issues to be dealt with in this
hearing, you requested our views on several specific
questions. First, you asked whether certain terms relating to
peace operations needed to be defined or clarified as a matter
of law. Our response is that this is not legally necessary.
The mandate of the Security Council for each operation defines
its scope and character, including the mission and command
arrangements for the operation.
It is of course useful in general policy discussions to
have a common understanding of the meaning of various terms
used. In this area, we use the term "peacekeeping" to refer to
operations carried out with the consent of the states or other
significant parties involved; these are traditionally
non-combat operations (except for the purpose of self-defense)
and are normally undertaken to monitor and facilitate
implementation of an existing truce arrangement and in support
of diplomatic efforts to achieve a political settlement of the
dispute .
46
- 9 -
We use the term "peace enforcement" to refer to operations
involving the use or threat of force to preserve, maintain or
restore international peace and security or to deal with
breaches of the peace or acts of aggression; these operations
are authorized by the Security Council under Chapter VII of the
Charter and do not require the consent of the states or other
parties involved. We use the term "peace operations" to refer
to the entire scope of peacekeeping and peace enforcement
activities .
Second, you asked whether the United States should enter
into agreements under Article 43 of the UN Charter to make
forces available at the call of the Security Council. This is
of course a policy, rather than a legal, question. As
Secretary Christopher stated last week, we do no^S exclude the
possibility of an Article 43 type of force down the road but at
this point it seems quite remote.
Third, you asked whether and how the UN Participation Act
should be amended. Our response is that the Administration
does not intend to seek any amendments at this time.
47
10 -
Fourth, you asked whether there is an adequate legal
framework to determine what the role of U.S. military forces
will be in future UN peace operations. Our answer is that
there is an adequate legal framework in the UN Charter, the
relevant UN Security Council resolutions, the U.S.
Constitution, the Foreign Assistance Act and the UN
Participation Act. The role of U.S. forces in UN peace
operations is a fundamental issue but one of policy rather than
law. This is a central part of the new policy approach
currently under discussion with the Congress.
We would be happy to respond to any questions on legal
issues that the Committee may have concerning peace operations.
48
Mr. CoNYERS. Thank you, Counsel Harper, for your definitive
statement on the subject and, also, your response to some of the
issues that we wanted to have put on the table.
Could I ask Mr. McNeill or Mr. Scheffer if they had any observa-
tions before we ask Mr. McCandless to conduct any questioning
that he might have?
Mr. McNeill. No, thank you, Mr. Chairman.
Mr. Scheffer. No, thank you, Mr. Chairman.
Mr. CoNYERS. Al, would you care to put any questions to the wit-
ness?
Mr. McCandless. At this point, I think we would be better
served, Mr. Chairman, if we could draft our questions to those ap-
plicable and, that way, we could possibly be a little bit more precise
in what it is we are trying to accomplish.
Mr. CoNYERS. Excellent idea. That means you will be expecting
a series of questions that you will submit the answers; and they
will all be included in the record.
Mr. McCandless. The one thing that keeps coming back in all
of this — and I understand your position as a counsel, Mr. Harper —
there is a very fine line between the legal aspect of this and policy
and, in your statement, you talked about the need to address the
policy part of it.
Therein lies an area in which I have a lot of concern, having
spent considerable time in the first peacekeeping mission, at the
expense of Mr. Truman, I might add. That is not meant to be politi-
cal. It is just that he happened to be the President at the time.
Mr. CoNYERS. Thank you very much. Grentlemen, we appreciate
your cooperation and we apologize for the necessity to juggle dates
several times to get us all here, so you can expect some questions.
We may add some questions to Mr. McCandless's list, as well.
Mr. Scheffer, please convey my regards to Mrs. Albright, who I
think is doing an excellent job in her new position. Thank you all
very, very much.
Mr. Harper. Thank you, Mr. Chairman.
Mr. McNeill. Thank you, Mr. Chairman.
Mr. Scheffer. Thank you, Mr. Chairman.
Mr. CoNYERS. May I now call Mr. John Bolton, Dr. Edward Luck,
Professor Eugene Rostow, and Professor Robert Turner to the wit-
ness table.
Mr. Bolton is the former Assistant Secretary of International Or-
ganization Affairs for the State Department under a former admin-
istration and is currently a senior fellow with the Manhattan Insti-
tute. He served both Presidents Bush and Reagan in high-ranking
positions in the Department of Justice and the Agency for Inter-
national Development.
Dr. Luck is president and chief executive officer of the United
Nations Association of the U.S.A., the country's leading policy re-
search and public outreach center on the United Nations. He is a
frequent commentator, has written extensively on the United Na-
tions and multilateral diplomacy. He is also a member of the Coun-
cil on Foreign Relations.
Professor Rostow is a lawyer, economist, educator, and distin-
guished professor of law and diplomacy at the National Defense
University in Washington.
49
Professor Turner is the associate director of the Center for Na-
tional Security Law of the University of Virginia, where he taught
courses and seminars on that and other related subjects. He is a
former president of the U.S. Institute of Peace and has served in
various capacities at the Department of Defense and Department
of State. He was once advisor to a member of the Senate Foreign
Relations Committee, as well.
Distinguished scholars, we welcome you all and we will begin
with you, Mr, Bolton. All of your testimony will, of course, be en-
tered into the record in its entirety.
We have a vote on. Let's hold up until we dispense of this vote
and then we will all be back very shortly. Then you will get at least
fewer interruptions. Thank you.
[Recess taken.]
Mr. CONYERS. The committee will come to order. If Mr. Bolton
is prepared to begin our discussion on this panel, we would be de-
lighted to hear from you. Good morning.
STATEMENT OF JOHN R. BOLTON, ESQ^ FORMER ASSISTANT
SECRETARY, INTERNATIONAL ORGANIZATION AFFAIRS, U.S.
DEPARTMENT OF STATE
Mr. Bolton. Grood morning. Thank you very much, Mr. Chair-
man, for the invitation to appear before you todav. I will just try
and summarize my statement very briefly, and then be happy to
answer questions.
I think some of the testimony given by your earlier witnesses in-
dicates one of the principal policy and legal issues that Congress
and the executive branch need to face in terms of United Nations
involvement in international crises. That is principally the distinc-
tion between traditional peacekeeping operations, on the one hand,
and what we are now calling peace enforcement operations, on the
other.
Peacekeeping operations have typically involved situations where
all the parties to a given dispute agree that the United Nations
should have some role as a disengagement force, as military ob-
servers or lately, in expanded roles: for example in the case of Na-
mibia, in overseeing an election leading to Namibia's ultimate inde-
pendence. The central and most important aspect of all peacekeep-
ing operations to date, however, has been having the consent of the
parties.
Where we have run into difficulty recently — and Somalia is cer-
tainly the perfect example — is where the United Nations and the
United States have moved into peace enforcement operations with-
out necessarily understanding the full implications of what peace
enforcement means, where the United Nations, in effect, becomes
one of the parties to a conflict to achieve certain objectives that the
Security Council sets forth.
That is not to say that that might not be a correct policy to follow
in a given international crisis but it is a very, very different oper-
ation for the United Nations to undertake than traditional peace-
keeping. That, I think, is why so many of these questions of the
command and control of United States participation in United Na-
tions operations and the responsibilities that Congress and the ex-
50
ecutive have for safeg^uarding American participation become so im-
portant.
I think what contributed to this question was actually some of
the successes the United Nations had in the late 1980's — looking
at the withdrawal of Soviet forces from Afghanistan; looking at the
cease-fire between Iran and Iraq after their 8-year-long war; Na-
mibia, as I mentioned before; the movement toward resolution of
the crises in Central America; and, of course, most importantly,
American diplomatic successes under President Bush during the
Gulf crisis of 1991. These, I think, led many people to conclude that
the United Nations was now fiilly as effective as the framers of the
San Francisco Charter had anticipated in 1945. This missed the
most important point, which is that the Security Council can be ef-
fective when there is cooperation between Moscow and Washington,
when there is at least acquiescence by Beijing, and where there are
clear United States interests to be pursued.
What happened after the Gulf crisis, in particular, I think, was
United Nations involvement, often at the behest of the United
States, in a series of crises that. No. 1, had only a tenuous relation-
ship to international peace and security, the jurisdictional trigger
for the Security Council and. No. 2, where American interests were
difficult to perceive, at best. You have had some of the earlier wit-
nesses mention today, obviously, Yugoslavia, Somalia, and Haiti.
What has happened, therefore, is that the United Nations —
again, perhaps largely at American insistence — has been
overstressed, overworked, and overburdened beyond its capability
to perform some of the vital tasks that it could perform.
I think, therefore, that in looking to what might happen in the
future in terms of revision, either to the United Nations Charter
or the United Nations Participation Act or other applicable stat-
utes, is that we have to ask basically more of a policy than a legal
question. The policy question is: what role do we want the United
Nations to perform in the implementation of American foreign pol-
icy? Do we want to pursue what the Clinton administration, at
least for a time, called "assertive multilateralism?" Do we wish to
use the United Nations when it suits our purposes or just use it
all the time?
I think when you begin to answer those sorts of questions, you
then get to more specific questions on things like participation of
American troops in United Nations peacekeeping operations, and
what the proper command and control structure ought to be. I
would not, therefore, think either that the Presidential decision di-
rective that has been discussed so much, or a legislative fix, is nec-
essarily going to answer that underlying policy question.
I personally support virtually everything in H.R. 3744. I think it
would be an excellent change to the United Nations Participation
Act. But it is really for Congress and the executive to grapple with
this fundamental policy point and come to some kind of policy con-
clusion on that first. I think once that happens, then a lot of the
operational questions flow much more easily from that.
That, very briefly, Mr. Chairman, is a summary of my statement.
As I say, I appreciate the opportunity to be here this morning and
I would be happy to answer any questions you may have.
[The prepared statement of Mr. Bolton follows:]
51
Testimony of
JOHN R. BOLTON
on
United Nations Peacekeeping Operations and Related Matters
Before the
Legislation and National Security Subcommittee
of the
House Committee on Government Operations
March 3, 1994
Washington, D. C.
52
Mr. Chairman and Members of the Subcommittee, it is a pleasure to appear before
you today to discuss the timely and sensitive issue of United Nations peacekeeping
activities and related matters. I hope that I might share some of my observations, based
on almost four years as Assistant Secretary of State for International Organization Affairs
during President Bush's Administration, and my continuing study of, and w/ork in, foreign
affairs matters. I ask that this brief prepared statement be submitted for the record. I will
try to summarize it, and then I would be more than happy to answer the Subcommittee's
questions.
BACKGROUND
Because of the onset of the Cold War shortly after the drafting of the United
Nations' Charter - and the subsequent diplomatic gridlock in the Security Council -- many
of the structures and processes contemplated by the Charter (and specifically Chapter VII,
on "Threats to the Peace, Breaches of the Peace, and Acts of Aggression") were never
fully implemented. For example, the Security Council did not become the paramount
International institution to deal with threats to international peace and security No special
agreements were ever negotiated under Article 43 to make available to the Security
Council, "on its call," military forces, assistance or facilities. The proposed Military Staff
Committee, modeled after the joint British-American command structure in World War II.
composed basically of the Chiefs of Staffs of the five Permanent Members or their
designees, and Intended to be the principle source of military advice to the Council, has
53
never performed the functions contemplated in the Charter. In fact, the Security Council
has only authorized the use of force to repel international aggression twice in its history, in
1950 in response to North Korea's invasion of the South, and in 1990 in response to Iraq's
invasion of Kuvrait.
Over the years, where Cold War tensions did not produce vetoes, the Security
Council and the U.N. Secretariat developed an alternative approach - "peacekeeping" -
which was based neither on a Chapter Vll nor a Chapter VI ("Pacific Settlement of
Disputes") authorization. Starting with the U N Truce Supervision Organization
("UNTSO"), created In 1948 and headquartered in Jerusalem, thirteen "peacekeeping
operations" were created through 1978, the last being the U.N. Interim Force in Lebanon
("UNIFIL"). Five of these original thirteen operations are still in existence. Their
performance has been uneven, in large part because they were not part of a larger
international framework seeking a comprehensive political resolution of the military dispute
they were established to monitor or observe
Perhaps the single most important shared attribute of these initial thirteen
peacekeeping operations is that they were all established with the full consent of the
parties to the pertinent dispute. This consent necessarily meant that the Secretariat and
UN troops in the field - typically unarmed or only lightly armed - tielieved that they had to
function impartially For example, the paradigm of an impartial, mutually-agreed upon force
is the U.N. Disengagement Observer Force ("UNDOF"), deployed along the Golan Heights
between Israeli and Syrian troops Both sides to that conflict, each for its own reasons,
saw the utility of a U.N. peacekeeping operation, and UNDOF has been basically
successful "on the ground" since its establishment in 1974 UNDOF is also an excellent
54
example of a force not established in a larger international context seeking to resolve the
underlying political problem.
The notion of consent and impartiality in UN peacekeeping operations became a
fixed point of reference for the Security Council, and for troop-contributing countries, which
were frequently neutral or non-aligned nations. The U.N.'s own unofficial history of
peacekeeping (The Blue Helmets: A Review of United Nations Peace-keeping, 1990) says
explicitly that "A United Nations operation cannot take sides without becoming a part of the
conflict which it has been set up to control or resolve. . . The peace-keepers have no
rights of enforcement and their use of force is limited to self-defense, as a last resort. This
means that if a party chooses not to cooperate, it can effectively defy a peace-keeping
operation." This is precisely what happened to the First U.N. Expeditionary Force ("UNEF
I"), deployed along the Israeli-Egyptian border from 1956 (following the Suez Canal Crisis
of that year) to 1967 Israel had never consented to deploying UNEF I forces inside its
territory, meaning obviously that the troops could only operate on Egyptian soil Thus,
when Egypt withdrew its consent to UNEF I's deployment in 1967, as The Blue Helmets
states so plainly, "its operation could no longer be maintained."
Because of the nature of these original thirteen U.N. peacekeeping operations ~
involving the consent of the parlies and complete UN impartiality ~ certain UN military
and logistical practices grew over the years The peacekeeping forces were relatively
small, and, as noted above either unarmed or only lightly armed. They did not in any way
resemble (with the exception of the U.N Operation in the Congo ("UNOC") from 1960 to
1964) conventional combat forces, precisely for the reason that they were to be
peacekeepers, not peace-enforcers At U N headquarters in New York, almost no
55
command, control and communications infrastructure seemed to be necessary. In its
peacekeeping bureaucracy, the Secretariat did not resemble the Pentagon. As a result,
many in the United States, including some of our most professional military officers in the
Pentagon, failed to understand the bases and lessons of UN peacekeeping exercises
A NEW DAY FOR PEACEKEEPING?
With the development of "new thinking" in Soviet foreign policy after President
Mikhail Gorbachev's rise to power. Moscow began to try to understand its role in the world
somewhat differently than It had since the 1 SI 7 Revolution. While that process was never
perfected, not even to this day, the Soviets did make an effort to define their foreign policy
as a "nomiar nation, rather than through the distorting prism of Communist ideology
Under Eduard Shevardnadze, the Soviets tried to articulate their legitimate national
interests, and to withdraw from wars of aggression and civil conflicts where only ideology
was at stake. Moreover, the Soviets began to take their role as a Permanent Member of
the Security Council more realistically, seeing the Council correctly as a forum where a
"normal" nation could make a real contnbution to preserving international peace and
security.
The first Important manifestation of Soviet "new thinking" in the Council came in
1 987 and 1 988 during consideration of steps to secure the withdrawal of Soviet troops
from Afghanistan and to end the eight-year-long war between Iran and Iraq The creation
of the UN Good Offices Mission in Afghanistan and Pakistan ("UNGOMAP") and the
U.N. Iran-Iraq Military Observer Group ("UNIIMOG") were seen as major developments in
56
the Security Council's history. (In Afghanistan, of course, the civil war continued despite
the Soviet troop withdrawal.) Swiftly following were the successful negotiations leading to
elections in, and the ultimate independence of, Namibia, Africa's last colony, under the
U.N Transition Assistance Group ("UNTAG"), and the withdrawal of Cuban forces from
Angola, monitored by the U.N. Angola Verification Mission ("UNAVEM I") By 1989,
progress on resolving civil strife in Nicaragua and El Salvador led to the creation of the
U.N. Observer Group in Central America ("UNOCA") as well as the U.N. Observer
Mission to Verify the Electoral Process in Nicaragua ("ONUVEN").
Thus in just two years - 1988 and 1989 -- six new U.N. peacekeeping operations
were created, fully half of the total from the previous forty-three years of U.N. history. In all
cases, the twin elements of the consent of all of the parties to a conflict and U.N.
impartiality in fulfilling the responsibilities assigned by the Security Council were both
present, although often only after the most intense and difficult negotiations Most were
possible because the Security Council benefited from the effects of Soviet "new thinking,"
and the consequent lessening of Cold War tensions. Surrogate "wars of national
liberation" in Central America, southwest Africa, and other far-flung regions simply looked
less important than when seen through the Communist prism, not to mention a lot more
expensive The correct lesson to derive from these successes was that Soviet-American
cooperation in the Security Council could produce mutually beneficial results
Unfortunately many people drew an incorrect lesson - that the United Nations was now
fully capable of functioning as the Framers of the San Francisco Charter had anticipated.
The successful, American-led international coalition to repel the unprovoked Iraqi
invasion of Kuwait in 1990 unfortunately confirmed for many the wrong lessons learned
57
from U.N. peacekeeping in 1988-1989. They missed the point that, once again, it was
largely Soviet-American cooperation - not changes in the United Nations - that was
central Also important, of course, and unprecedented was the willingness of many Arab
nations to ally themselves with '1he West" in order to overturn the aggression In
retrospect, the diplomatic effort culminating in. among other numerous Resolutions, the
Security Council's authorization to use force to expel the Iraqis from Kuwait (Resolution
678), imposing the sut)sequent cease-fire and the effort to eliminate Iraq's weapons of
mass destruction (Resolution 687); and the steps taken to assist Kurds and others still
subject to Saddam Hussein's terror (Resolution 688) seemed to many to be inevitable
diplomatic events. So viewed, therefore, the Security Council looked ever more potent.
This assessment, however, is highly inaccurate.
Virtually all of the critical elements of Council Resolutions during the Persian Gulf
Cnsis came after only the most intense personal lobbying in telephone calls and meetings
by President Bush and Secretary of State James A Baker, III Indeed, in August. 1990,
immediately after the Iraqi invasion of Kuwait, it was not at all clear to many of us involved
in the diplomatic process that we could or would ever obtain a Security Council Resolution
authorizing the use of force that we would find acceptable. It is some measure of the
political effort that had to be undertaken - even in this country - that the Security Council
authorized the use of force before the United States Congress was able to act The real
lesson of the diplomacy of the Gulf Cnsis is that only the direct, personal leadership of the
President and his Secretary of State in foreign policy can provide the opportunity for the
United Nations to be effective. Anything less simply risks failure. No President can
successfully delegate his foreign policy responsibility. Concluding from the Gulf Crisis that
the Security Council was fully effective - or nearly so -- misses the entire point of the
58
diplomatic effort which the Bush Administration decided to undertake.
AFTER THE PERSIAN GULF CRISIS
The erroneous conclusions drawn by many after the U.N "s successes in
1988-1990 and after the Persian Gulf Crisis have led directly to the problems the
international organization has faced in peacekeeping efforts in more recent days. Most
importantly, too often the distinction between "peacekeeping" (involving the consent of the
parties to a dispute and U.N. impartiality) and "peace-enforcement" (which necessarily
implies the potential for a U.N. combat role against one or more of the parties to a dispute)
has been blurred, with often tragic consequences Moreover, many of the new conflicts the
Security Council faced were not traditional threats to international peace and security ~
conflicts between states - but internal disputes, frequently ethnic or religious in nature.
One should carefully examine whether U.N "peace enforcement" was ever actually
analyzed for its true implications by political and diplomatic decision-makers, in terms of
military and civilian casualties and battle damage In fact, "peace enforcement" missions
seemed to spring first from the fertile imaginations of U.N. enthusiasts, rather than from
hard-headed political-military assessments of actual conditions in conflict situations. That
fact alone should display "caution" signs to diplomatic decision makers.
In the former Yugoslavia, for example, the original deployment of the U.N.
Protection Force ("UNPROFOR") in Croatia (after the adoption of Resolution 743 on
February 21 , 1992) was intended as a stabilizing element. Because UNPROFOR was
59
established for peacekeeping rather than peace-enforcement, however, it was unable to
stop continued Serbian efforts at ethnic cleansing or Croatian preparations to resume
hostilities and recapture terntory from the Serbs Similarly, when UNPROFOR's mandate
was expanded (in Resolution 758 on June 8, 1992) to include protecting the distribution of
humanitarian assistance in Bosnia, it was barely capable of doing that, let alone containing
the spread of fighting among Serbs. Croats and Bosnian Muslims.
Governments with peacekeepers on the ground, such as the United Kingdom and
France, repeatedly rejected efforts to provide more muscular rules of engagement, feanng
for the safety of their peacekeeping troops. Despite proposals from time to time by both
the Bush and Clinton Administrations to employ more offensive military power, even our
close allies have resisted, in part because they doubt whether peacekeeping and
peace-enforcement can take place simultaneously in the same territory. The Bush
Administration was successful on August 13, 1992, in obtaining Security Council
Resolution 770, authorizing "all measures necessary to facilitate the delivery of
humanitarian assistance " That authonty. however, has only barely been used because of
UNPROFOR fears for the safety of the peacekeepers against retaliation.
Whether NATO's decision on February 9 - following the February 5 massacre at a
Sarajevo mari<et - to try to force the withdrawal of heavy Serbian artillery from around
Sarajevo wnll ultimately be successful remains to be seen Many eariier US and NATO
threats have gone unimplemented Moreover, the eariy returns about the state of the
cease fire and Serbian compliance with NATO's demand are mixed. Ominously, but not
unexpectedly, Russia demanded a meeting of the Security Council, and Deputy Foreign
Minister Anatoly Adamishin was quoted in press reports as saying "This is not NATO's
60
10
business. It is the job of the U.N."
Indeed, the introduction of Russian ground forces into the Sarajevo region has
obviously increased the risks and potential adverse consequences for any NATO strike
which causes Russian casualties. Undoubtedly, President Yeltsin knew that the Russian
maneuver would limit NATO's flexibility, thus serving as an inducement to the Serbs to
appear to comply with NATO's "ultimatum." The Russian gambit once again underlines
the fragility of the Security Council's mandate, and how dependent it is on cooperation
between Moscow and Washington Finally, it is entirely unclear what the Administration
would then have NATO do if the air strikes did not fully accomplish their missions, and
whether the Administration contemplates even greater NATO military action.
At the same time, statements by President Clinton and others in his Administration
seemed at first to indicate that the United States has now come to support the European
Community's proposal to partition Bosnia into three gerrymandered ethnic enclaves Such
a policy shift would essentially ratify Serbian military gains, and mean the effective end of
Bosnian independence. Ironically, of course, this diplomatic flip-flop substantially relieves
pressure on the Serbs just at the time NATO's action seems to increase the military
pressure. It is, at this point, at least arguable that the changed U.S. diplomatic policy is
more harmful to the prospects of the Bosnian Muslims than the new NATO military policy
Is harmful to the Bosnian Serbs Later reports of American policy support for a bi-ethnic
Muslim-Croat state in Bosnia are even more troubling Such a state would ratify Serbian
military gains, and simultaneously fail to provide a comprehensive resolution of
Croat-Muslim tensions. Events In the former Yugoslavia unfold daily, and the future
remains dim at best.
61
11
In Somalia, a United States-led. mission - with carefully-defined and very limited
humanitarian purposes, but fully prepared to use "harsh" force to defend itself if necessary
- was originally intended by President Bush to be handed back quickly to more traditional
United Nations peacekeepers (the UN Operation in Somalia, "UNOSOM").
Unfortunately, the present Administration dramatically expanded the role of the uneasily
combined U.S. and U.N. forces in Somalia to something called "nation building," with many
needless casualties resulting. In large part, these tragic deaths occurred because
policymakers failed to make the appropriate distinctions between peacekeeping and
peace-enforcement
The result, in 1993. was that UNOSOM was a hybrid of mixed missions, mixed
capabilities, and mixed chains of command and communication. Having once committed
to an expansive U.N. role, the Clinton Administration, after the American tragedy in
Mogadishu, has decided to withdraw all American forces imminently Where this will leave
the remaining UN forces is anyone's guess I have recently written an article on Somalia
for Foreign Affairs which elaborates on these points, and I ask that it be included in the
record along with my prepared statement.
In Haiti, the same confusion has resulted in the embarrassment of a United States
ship carrying troops turning away from the dock at Port-au-Prince because a few dozen
thugs threatened violence if the troops were to land in Cambodia, the Paris Accords were
not fully implemented because the Khmer Rouge were not disarmed by the U.N.
peacekeeping operation, which lacked the authorization and the capability to impose
disarmament on any of the factions In the Western Sahara, the U.N.'s efforts to can7 out
a referendum on the territory's future political status have been frustrated because of the
rk^\ r\^\^^ .0^
62
12
limited Security Council mandate afforded the organization's peacekeepers, and an
apparent lack of attention in the Secretariat.
One can only wonder at the conclusions being drawn around the world at the
failures of American leadership at the United Nations in all five of these countries, failures
stemming in large part from confusion over precisely what roles troops authorized by the
Security Council are supposed to play -- peacekeeping or peace-enforcement - and, in
turn what role the United States will play in these differing circumstances.
This is not a technical, military or legal argument about rules of engagement and
proportionate force, nor a criticism of the United Nations as an organization, but a very
important political debate. The answers to the questions raised in this debate bear heavily
on future U.S. policy toward the United Nations, and the structure of the American legal
underpinnings for our Involvement in UN peacekeeping and peace-enforcement
operations
THE FUTURE
During the Cold War, the "Perm Five Convention," an informal agreement among
the Security Council's five Permanent Members, provided in part that their troops would
not participate in U.N. peacekeeping operations. The basis for the Convention, in large
measure, was essentially a mutual distrust among "the Five" that their respective political
agendas that might be advanced by having their troops participate in U.N peacekeeping
activities. There were some exceptions to troop involvement from the "Convention," (such
63
13
as UNTSO) and there were also cases where the United States in particular provided
logistical and other non-lethal support (such as airlifts of troop contributors) to U.N.
peacekeeping efforts By and large, however, the Perm Five Convention meant that U.N
peacekeeping would proceed using largely neutral and non-aligned forces, almost entirely
the opposite of the way that Chapter VII had contemplated, with the five Permanent
Members dominating military preparations and implementation. A further domestic political
consequence for the United States was that many issues hiding in the U.N. Participation
Act of 1 945 were never fully faced.
That luxury is no longer with us. Events in Somalia and elsewhere now compel us
to reconsider these issues. This conclusion is made more forcefully when we see other
Permanent Members, like the United Kingdom and France, increasingly willing to
participate in U.N. peacekeeping operations, in large part to preserve their "great power"
status as members of "the Five "
Perhaps the most important point here is that the carefully-drawn structure of
Chapter VII of the Charter does not seem likely to rise from the ashes of the Cold War.
Even given the recent dramatic changes in Russia - which may or may not be permanent
" it IS highly unlikely that the military staffs of the five Permanent Members really have
much to say in each others presence Even though the Military Staff Committee did meet
on several occasions at a high level during the Persian Gulf Crisis - at the specific request
of the Soviets - it did so only for the three NATO Permanent Members on the Council to
brief the others in a very general way on military preparations in the Gulf The senior
military officials who met did not even wear uniforms, at the request of the People's
Republic of China The idea of the Pentagon and military authorities from Moscow and
64
14
Beijing sitting together to discuss a joint U.N. military doctrine simply is not a realistic
prospect for the foreseeable future. A necessary implication is that Article 43 special
agreements on force availability are not near on the honzon either.
Moreover, it is also unrealistic to contemplate amending the U.N. Charter to correct
Chapter Vll's existing deficiencies. For one thing, there is no consensus whatever about
what changes to make. For another, and perhaps even more importantly, opening any
portion of the Charter to amendment means that the entire Charter is open to change.
Inevitably, considering amendments to Chapter VII would mean that the size and
composition of the Security Council itself would become an issue. Already, Japan,
Germany, Italy, Brazil, India and Indonesia (and perhaps others) have expressed their
desire to become Permanent Members, although under varying circumstances; some have
suggested that the "European Union" (as the EC-12 now call themselves) take a
permanent seat; and there are more proposals for "regional" permanent seats than one
can briefly characterize Also inevitably, the question of the Permanent Members' veto
would be debated again. All of this means confusion and drift at best, and real damage to
the authority of the Security Council at worst, no matter how its composition eventually
turns out. Mr. Chairman, I wrote an article for the Wall Street Journal on the subject of the
composition of the Security Council last year, and I would request that a copy of that piece
also be made a part of the record of this hearing
The foregoing analysis does not lead to happy conclusions. The existing Chapter
VII structure does not and has not worked, and it does not seem possible to fix it. This
dilemma thus leads to a continuation of the present ad hoc system of military command,
communications and control from UN headquarters, with all of its attendant problems. It
65
15
is precisely the "chewing gum and bailing wire" nature of traditional U.N. peacekeeping -
as exemplified so horribly recently in Mogadishu - that makes many Americans wary of
placing our troops under "foreign" command in a UN operation Compared, for example,
to the finely-honed C3I structures of NATO, built up over years of intense consultations
and practical exercises, the U.N has seemed a frail enterprise at best. Indeed, even in
those peacekeeping efforts where the parties have apparently consented, and where the
physical dangers seem more remote, Americans are more vulnerable than others, as
Colonel William Higgins' terrible fate in Lebanon proved so dramatically.
Accordingly, I remain skeptical that a new Presidential Decision Directive or a
legislative "fix" to the U.N. Participation Act of 1945 will really address the underlying
problem. That problem is not the legal structures of the U.N. Charter or substantive
American law. It is, instead, a continuing uncertainty of the role we want the United
Nations to play in our foreign policy, and the ongoing struggle between the Legislative and
Executive Branches of our Government to measure their respective authorities Thus, I
fully endorse the criteria that President Clinton laid out in his speech to the United Nations
General Assembly in September, 1993, that have to be met before new U.N.
peacekeeping operations are created The new peacekeeping Presidential Decision
Directive that he is apparently poised to sign - according to press reports - seems to
embody these criteria The only problem is that the Administration is not following its own
guidelines
Similarly, I have reviewed the text of H. R. 3744 (103d Congress, 2d Session), and
I basically agree with the legislative changes it proposes For example, its assertion of
Congressional authority over any Article 43 special agreements is entirely appropriate, as
66
16
is its similar clarification of the Congressional role before American troops are deployed
under U.N. command. I also agree that the U.S. assessment for peacekeeping activities
not be greater than its assessed share for the regular budget of the United Nations That
was the practice from 1 948 until 1 973. and there is no reason it should not be reinstated
forthwith.
Despite the attention it has recently received, however, the main issue is not
"foreign" command of U.S. forces participating in a U.N. peacekeeping or
peace-enforcement operation In fact, If US troops are not to be placed under "foreign"
command in U.N. peacekeeping where we participate, how can we realistically expect that
many other militarily-significant nations will place their young men and women under
"foreign" command? The real question is more fundamental, and requires a political
answer rather than a legal one. Do we want American foreign policy to be so exclusively
concentrated in the United Nations that pressures for major American military involvement
in peacekeeping will inevitably continue to grow'? Do we expect the United Nations to
become embroiled in every ethnic conflict around the world, or to confine itself to the
Security Council's role as defined by the Charter, threats to international peace and
security? Do we want to expand the authority of the U.N. at the expense of our own
national sovereignty? Have we defined carefully enough the differences between
peacekeeping and peace-enforcing, and the different military doctnnes they entail?
If one favors a limited utilization of the U.N when it is in American interests to do
so. if one favors a generally circumscribed role for the U.N. in any event, if one is
concerned about the sovereignty issue, and if one appreciates differences in military
missions in possible UN assignments, then many of the problems we have discussed will
67
17
have far less importance. The more technical issues of command and control - albeit
operationally significant - could then t>e handled on a case-by-case basis If "assertive
multilateralism" has in fact already passed from the scene, as I believe it has, then many of
the concerns reflected in pending legislation are not as urgent as they may have seemed
six months ago. Nonetheless, I concur that we need a more serious discussion of all of
these issues, a discussion we have not been required to have heretofore.
One thing is certain. Whether the United States uses the United Nations, NATO,
or "coalitions of the willing" in response to particular cnses, we cannot afford fecklessness.
random walks, and weakness in the projection of American authority internationally. Our
foreign policy should not - and cannot -- be driven by purely domestic political
considerations. America's greatness in the world has stemmed largely from our repeated
ability to rise above such limited concerns However, one of the reasons why former
Yugoslavia, Cambodia and Haiti (and other countries) have seemed like such problems in
the past year is precisely the lack of attention to international policy making in the
post-Cold War Era which so many once welcomed as the preferred alternative to President
Bush's concentration on foreign-policy issues. The clear lesson is that every President
and every Administration have to take seriously their Constitutional oath and obligation to
be concerned about external threats to the security of the United States, an obligation that
cannot be delegated to subordinates
Thank you again, Mr. Chairman, for the opportunity to appear before the
Subcommittee, and I look forward to your questions, and those of your colleagues.
68
Mr. CONYERS. Thank you, Mr. Bolton. You raise a number of im-
portant and interesting considerations that maybe we will have
time to discuss in our question period.
Mr. Edward Luck. Dr. Luck, we are delighted to have you with
us and we would like you to add your comments to those that have
already been given this morning.
STATEMENT OF EDWARD C. LUCK, PRESIDENT AND CHIEF EX-
ECUTIVE OFFICER, THE UNITED NATIONS ASSOCIATION OF
THEU.SJL
Mr. Luck. Thank you very much, Mr. Chairman. Like John and
the others, I will abbreviate my statement, partly for the sake of
time and partly to avoid some redundancy.
I would point out, though, at the beginning, that this is not just
an American problem or an American dilemma. There are 70-some
other countries now participating in United Nations peacekeeping
operations. It would be helpful to look at some of these cmestions
because our solutions might provide models for some of tne other
countries that, in some cases, could create some difficulties down
the road.
Before turning to some of the legal and policy choices, I would
like to address some of the conceptual confusions that have clouded
public debate in recent months. It is ludicrous to suggest, as some
prominent voices have, that it is the United Nations that is dictat-
ing United States commitments rather than the other way around.
United States power and prestige give it enormous influence in the
United Nations, especially in tne Security Coimcil. With the veto
power, the President can say no to new United Nations missions
whenever he chooses.
I think, as others have pointed out, that it is very important to
differentiate between chapter VI, pacific settlement, and chapter
VII, enforcement operations. There has been a confusion both in
public debate here and in the choices the Security Council has
made from time to time. The key, really, is for the Security Council
to make a very careful and sober diagnosis, so it is applying the
right medicine to the right place at the right time.
Most of the problems we have seen stem from the fact the mis-
sions have been wrongly defined and the forces have been inappro-
priate for the situation at home. If there is to be a chapter VII en-
forcement resolution from the council, it is very important that the
member states, recognizing that this is very serious business, pro-
vide sufficient forces on the ground, as well as in the air and at
sea, to do the job right.
I would also point out, Mr. Chairman, that we have not had in
recent years a black and white situation where the United Nations
has always been successful or has always been unsuccessful. Every-
one points to the problems in Bosnia, Somalia, and Haiti, and they
are very real problems but there have also been cases — ^for example
in Namibia, El Salvador, Cambodia, and now, increasingly, in Mo-
zambique— where the United Nations operations appear to be quite
successful and promising.
It is important to note that most of these successes have been
under chapter VI, but they have been verv broad, national building
exercises. Sometimes having the political component and the eco-
69
nomic component, in fact, can make for a stronger solution than
simply looking for a chapter VII military answer to each of these
situations. It is not necessarily the breadth of the United Nations
operation that is the problem but, I think, whether the judgment
was made properly as to whether or not chapter VII enforcement
is necessary.
I would point out, Mr. Chairman, that the October 3 debacle in
Mogadishu should remind us both that enforcement missions under
chapter VII may entail substantial human as well as financial sac-
rifices and that American forces may have to carry more weight
under chapter VII than they would under chapter VI activities. It
is also worth noting that that particular mission was under unilat-
eral American command, that there had not been previous coordi-
nation with the United Nations command; and that it was a very
sad case.
The problem was that there was a dual command structure set
up, not that some foreign commander was ordering those rangers
into combat. That was a unilateral U.S. decision and I don't think
it is fair to say that it was multilateralism that was fundamentally
at fault there.
Regarding some of the legal issues, I would like to address briefly
sections 6 and 7 of the United Nations Participation Act. As was
mentioned earlier, section 6 specifically authorizes the President to
negotiate an article 43 agreement with the Security Council that
would then be subject to congressional approval. Once Congress
had approved this article 43 agreement, those designated forces
would be available to the council whenever they were called upon,
without further consultation with Congress.
I would argue that we should look at the possibility of entering
into an article 43 agp'eement. As has been pointed out, no country
has done that and that allows us, in essence, to set a precedent
about what article 43 agreements ought to look like.
It seems to me that we should consider a generic article 43
agreement, not specifying one or two particular battalions or what-
ever as potential United Nations-earmarked forces, but making
clear to the United Nations that we have a number of potential ca-
pabilities that might be brought to bear. At the same time, we
should make very clear that article 43 should be conditional, it
should not be automatic. The decision to commit those forces
should be subject to our constitutional processes, not simply by a
vote in the council.
We obviously have the capability of vetoing any new mission in
the council that we do not like, but this is a very serious national
matter and ought to be decided in a way that has full public airing
and support.
Now, on section 7, it says that the President may detail up to
1,000 United States military personnel for noncombatant capacities
in nonenforcement operations of the United Nations. As you know,
the United Nations has traditionally not used Russian or American
forces in any numbers in peacekeeping, certainly not in full units.
But American military personnel are in increasing demand now to
monitor arms control and troop supervision tasks — Iraq would be
a good case in point — to provide technical assistance for mine clear-
70
ing, communications, and intelligence, and to provide general logis
tics support for United Nations peacekeeping operations.
In that case, it seems to me the ceiling of 1,000 is much too low
and that either this particular ceiling should be raised substan-
tially or I would prefer just to delete it altogether, because these
are chapter VI operations being considered in the first place.
The most controversial issue, of course, is the one of command
and control and this is something that is of concern to many other
countries and not just to the United States. As I sugjgested with the
case of Mogadishu, it is very important to have a single, unambig-
uous, clear chain of command for any United Nations or multi-
national operation. These are confusing, tough things to put to-
gether and you ought to have a single chain of command.
There have been many cases where Americans have served
under foreign command. It happens now, today, in NORAD; it hap-
pens in NATO. There are many Americans serving and, for many
years have, in United Nations peacekeeping operations, as individ-
uals.
We have a MASH unit in Zagreb serving for the last couple of
years under United Nations command. We have forces in Macedo-
nia. All of these things seem to work reasonably well. It is not the
nationality of the commander, after all, but the capabilities of that
person, that are important.
The individual units should remain under their national com-
mander in the normal way. Tactical command of the forces should
be left to the commanders in the field who are closest to changing
conditions and opportunities. I think it ought to follow the normal
practice that NATO does, that the country that provides the bulk
of the forces provides the overall commander so, in cases where the
United States was providing the bulk of the forces, it would make
sense to have an American in command.
As others have pointed out, Mr. Chairman, the fundamental
questions here are really political and strategic, not legal. For ex-
ample, what are American national interests and values around
the world in the post-cold war era? What sacrifices should we be
prepared to make to advance these interests and values? What is
the best mix of unilateral and multilateral actions to achieve these
goals? How should the United States act to strengthen the United
Nations so that it can play a more effective role in this effort?
Until we can articulate answers to these queries that are capable
of attracting broad public support, we will not have the kind of in-
formed and durable political foundation in this country for United
States, much less United Nations, military action, no matter what
legal guidelines and technical mechanisms are in place.
I would just point out, Mr. Chairman, that there have been sev-
eral references to public opinion. I notice that none of them cited
any public opinion polls, which have consistently shown strong
public support for United Nations peacekeeping operations. Just 2
weeks ago, the University of Maryland, for example, conducted a
national poll in which they asked Americans about their support
for peacekeeping. They found that 84 percent said that they fa-
vored United Nations peacekeeping in principle; only 13 percent
did not; 62 percent said they would favor higher United States
spending for peacekeeping, not less.
71
I don't suggest that there is necessarily a deep well of public sup-
port but I think it is there if there is leadership from Washington
to encourage an informed and active public debate on these issues.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Luck follows:]
THE POLITICAL A^fD LEGAL BASIS FOR U.S. PARTICIPATION
IN UN PEACE OPERATIONS
Testimony Before the Subcommittee on Legislation and National Security
of the Committee on Government Operations
U.S. House of Representatives
March 3, 1994
by
Edward C. Luck
President
United Nations Association of the USA
73
Never before have the nations of the world called on the United Nations to undertake
such a diversity of security-related tasks around the globe. Not only are the numbers of
missions, troops and dollars climbing rapidly, but they encompass a range of military, political,
and humanitarian functions never before attempted in human history. With member states voting
for more operations than they are prepared to pay for, and with the US and Russia hundreds of
millions of dollars in arrears, UN resources are stretched very thin. So too are the conceptual
and legal frameworks for defining the scope and conduct of the new UN missions.
You thus have convened these hearings, Mr. Chairman, at a most propitious moment,
when the United States and other key member states need to rethink the financial and legal basis
for their military cooperation with the United Nations as a matter of some urgency. With
thousands of American soldiers joining contingents of blue helmets, from seventy other
countries, improvisation and ad hoc responses simply will not do. It is high time to revisit the
common sense blueprint for global military cooperation laid out in the UN Charter, then set
aside during four decades of Cold War tensions. This is a central conclusion of a binational
study recently published by UNA-USA, When Diplomacy Fails: Russian-American Proposals
for United Nations Military Action, that is the product of a task force of top military and foreign
policy figures from the two countries.
Before turning to legal issues and policy choices, I would like to address briefly some
of the conceptual confusions that have clouded public debate in recent months. It is ludicrous
to suggest, as some prominent voices have, that it is the UN that is dictating US commitments.
1
74
rather than the other way around. US power and prestige give it enormous influence in the UN,
especially in the Security Council. With the veto power, the President can say "no" to new UN
missions whenever he chooses.
The drafters of the UN Charter, moreover, were wise to differentiate between the
peaceful means of dispute settlement laid out in Chapter VI and the range of enforcement
measures outlined in Chapter VII. This distinction is too often blurred in current discourse, both
public debate and Security Council mandates. Classical peacekeeping, undertaken with the
consent and cooperation of the parties to a conflict, is essentially a policing, confidence-building
function carried out by military units and designed to be an adjunct to an ongoing diplomatic
process. It requires highly disciplined but lightly armed forces, whose role is to monitor an
existing peace, not to compel the parties to cease hostilities, end human rights abuses, or
distribute humanitarian assistance. The UNTAC mission in Cambodia succeeded in part because
it stuck to its Chapter VI peacekeeping mandate despite criticism from those who wanted to see
it adopt a more aggressive posture towards the Khmer Rouge.
Unlike peacekeeping. Chapter VII enforcement ~ whether through political, economic,
or military sanctions ~ clearly does not require the consent of the parties to a conflict. It
necessarily involves taking sides to the extent that any of the parties challenge the operation's
mandate as set out by the Security Council. While both the US and the UN made serious
tactical mistakes in Somalia, the Council properly gave the mission a Chapter VII enforcement
mandate since it was understood that humanitarian assistance and political reconstruction efforts
would encounter some armed resistance in that chaotic environment.
75
The key is for the Security Council to make a careful and sober diagnosis so that the
right medicine is applied to the right place. It is unrealistic and dangerous, for example, to give
lightly-armed peacekeepers tasks that entail enforcement responsibilities, as the Security Council
has done repeatedly in Bosnia- Herzegovina. If the members of the Council are serious about
invoking Chapter VII enforcement measures - and it is a very serious business - then they need
to provide sufficient forces on the ground, as well as in the air and at sea, to do the job right.
Otherwise, their words will be misleading, lives will be endangered, and the credibility of both
the UN and the member states will suffer.
These distinctions have blurred as the member states, recognizing that a durable peace
may sometimes entail dealing with the political, social, and humanitarian roots of conflict, have
added ambitious nation-building and humanitarian assistance layers to UN peacekeeping or
enforcement missions. In Namibia, El Salvador, and Cambodia, these efforts appear to be
working, and Mozambique looks promising. Conditions in Haiti, Angola, Somalia, and Bosnia-
Herzegovina remain inhospitable to social reconstruction efforts under Chapter VI. Even under
the best of conditions, nation-building cannot be imposed from the outside, since it relies chiefly
on the will and the spirit of the people within the society. When conditions are right, however,
the international community, working through the UN and regional organizations, can make the
critical difference with sufficient time and patience.
Turning to legal issues, Mr. Chairman, there have been many calls for recasting the rules
for our nation's military cooperation with the UN since the October 3rd debacle in Mogadishu.
The incident served as a graphic reminder both that enforcement operations under Chapter VII
may well entail substantial human as well as financial sacrifices and that American forces may
76
be expected to carry more of a burden in enforcement than they traditionally have in
peacekeeping. Handing responsibilities to the UN offers the chance of sharing the burden, not
giving it up entirely. Ironically, it is the quality and reach of our military capabilities developed
for Cold War contingencies that have now thrust our nation to the forefront of international
efforts to enforce a post-Cold War peace.
In this context, it is time to revisit Article 43 of the UN Charter, under which all member
states "undertake to make available to the Security Council, on its call and in accordance with
a special agreement or agreements, armed forces, assistance, and facilities, including rights of
passage, necessary for the purpose of maintaining international peace and security." Since no
member state has yet worked out such an agreement with the Council, the United States has a
golden opportunity for leadership in defining the meaning of Article 43 and in establishing a
precedent for other states. The United States should indicate to the Security Council its
willingness to enter into a generic and conditional Article 43 agreement in the expectation that
other member states, beginning with the other four permanent members, will follow.
Because the US has such a broad range of military assets deployed on land and at sea
around the world, a flexible agreement, indicating that the US military has a range of capabilities
that might be tapped depending on the circumstances, would seem to make the most sense. The
agreement should also make clear that any call by the Security Council for the deployment of
American Article 43 forces should be conditional on US constitutional processes. While the US
can veto the authorization of any new peacekeeping or enforcement mission, many member
states ~ and no doubt Congress as well — would be uncomfortable with an assumption that
Article 43 forces could be automatically and unconditionally deployed by the Council. The pre-
77
designation of forces, however, could be very helpful in training, joint exercises, and
contingency planning as the UN moves from the current reactive and case-by-case approach to
a more professional and systematic way of dealing with military matters. These questions are
addressed in greater detail in When Diplomacy Fails, the Russian-American report noted above.
Section 6 of the UN Participation Act of 1945 specifically authorizes the President to
negotiate an Article 43 agreement with the Security Council that would then be subject to
Congressional approval. It also states that the President would not need Congressional
authorization for making these designated forces available to the Council when it takes
enforcement action under Article 42. The legislative history suggests that Congress assumed that
a rather limited contingent of forces would be designated in an Article 43 agreement, so that
their commitment to the UN would not infringe upon Congress' constitutional prerogative to
declare war. If the President negotiates a generic Article 43 agreement, as I have advocated for
reasons of military flexibility and feasibility, then Section 6 of the UN Participation Act should
be amended to permit a Congressional voice in large troop deployments for enforcement
operations under Chapter VII.
Section 7 of the Act also could use a fresh look under changing circumstances. It permits
the President to detail up to one thousand US military personnel for non-combatant capacities
in non-enforcement operations of the UN. While the UN has a long and sensible tradition
against using combat units of the former superpowers for classical peacekeeping missions,
American military personnel are in increasing demand to monitor arms control and truce
supervision tasks; to provide technical assistance for mine-clearing, communications and
intelligence; and to provide logistics support of UN peacekeeping operations. The ceiling of one
78
thousand seems much too low to permit the necessary flexibility as the demand for Chapter VI
peacekeeping continues to expand. I would recommend raising the ceiling substantially or,
better yet, deleting it altogether.
The most controversial issue surrounding US military participation in UN operations is
command and control, a concern shared by dozens of troop contributing countries. If each
insists on micro-managing the use of its troops participating in multilateral enforcement actions
under the UN flag, the results could be a degree of chaos that threatens the welfare of every
national unit as well as the success of the mission. In a multinational operation, especially under
Chapter VII, it is extremely important that the lines of command authority be unambiguous and
clear to all. The dual reporting lines in Mogadishu, where the American Rangers unilaterally
undertook a dangerous mission without coordinating with the UN command first, have
contributed to unnecessary loss of life and to undermining the whole operation.
The tradition of UN peacekeeping and enforcement missions ~ not unlike NATO -- has
been to cede the overall operational command to an officer of the country contributing the
largest share of the forces, with individual units continuing to work under their national
commander within this overall structure. While the Security Council is responsible for defining
the overall mission, the tactical command assignment of forces in combat should be left to
commanders in the field who are closest to changing conditions and opportunities. This would
seem to be a sensible structure from a military perspective, though these command and control
/
issues tend to become political tug-of-wars in which military rationality is subsumed by questions
/
of national pride and domestic politics.
In conclusion, Mr. Chairman, I would stress that, while the legal framework for US
79
participation in UN military operations could use a refurbishing, the fundamental problems are
political, not legal. Congress has reason to want fuller and more timely consultations with the
Executive Branch before the Security Council votes to authorize major new peacekeeping or
enforcement operations. Otherwise the continuing debates between Congress and the Executive
Branch over war powers will affect support for US participation in UN peace operations just as
they do unilateral decisions to use force. But the deeper strategic issues remain: what are
American national interests and values around the world in the post-Cold War era?; what
sacrifices should we be prepared to make to advance these interests and values?; what is the best
mix of unilateral and multilateral actions to achieve these goals?; and how should the US act to
strengthen the United Nations so that it can play a more effective role in this effort? Until we
can articulate answers to these queries that are capable of attracting broad public support, there
will not be an informed and durable political foundation in this country for US, much less UN,
military action no matter what legal guidelines and technical mechanisms are in place. So, Mr.
Chairman, I would urge your distinguished Subcommittee to maintain a broad and searching
perspective as it addresses these critical issues of war and peace in a challenging new era.
Thank you.
80
Mr. CoNYERS. I am very grateful for your observations because
you raise questions that I want to relate to Haiti and Somalia both.
I appreciate your testimony very much.
Professor Rostow, I have been reading you for longer than you
have been listening to me and I am very honored that you are here
joining us today. It is a real pleasure to have you in our midst. We
would invite you to comment on not only your written statement
but any other statements that have occurred in your presence in
the hearing room. We welcome you to the Government Operations
Committee.
STATEMENT OF EUGENE V. ROSTOW, PROFESSOR OF LAW
AND DIPLOMACY, NATIONAL DEFENSE UNIVERSITY
Mr. Rostow. Thank you very much, Mr. Chairman. Do I have
this thing on or off?
Mr. CoNYERS. It is on.
Mr. RoSTOW. I don't mind being reminded of my advancing years
and the fact that I have been publishing for a long time. I am glad
to hear somebody has read them.
Mr. CoNYERS. Thank you.
Mr. Rostow. I am privileged to be here today and I thank you
for your invitation. I think I should start my statement by explain-
ing the studies I have been engaged in for the last few years be-
cause those studies, and the conclusions to which they have led me,
are the source and context of the testimony I have prepared for
you.
I am conducting a research project on the foundations of Amer-
ican foreign policy. The first book contemplated by my research de-
sign, "Toward Managed Peace," was published by the Yale Press
about 8 months ago. A paperback edition, under the much jazzier
title of "A Breakfast for Bonaparte," has just been put out by the
National Defense University Press for the national security com-
munity.
The book attempts to define the national security interest of the
United States, the first one: what we should fight for even in the
nuclear age. There have been many references in the hearings this
morning to what concerns our national interest. The answer that
this book offers is one that might be surprising but it is one I think
I attempted to justify in the course of a reasonably long book.
Our most fundamental national security interest, the one that we
should fight for, goes far beyond our capacity to keep invaders off
the shores of New Jersey. Our national security interest, I believe,
is in the management of the state system as a system of peace.
Success in that effort requires tne state system to be based on
a favorable balance of power and directed by the major powers, or
a decisive number of them, in ways which keep the peace in accord-
ance with the norms of international law. For our time, most of
those legal norms supposed to govern the international use of force
by states or from states are stated in the United Nations Charter.
The second volume, the one on which I am working now, is ten-
tatively called "Managing the Peace." It deals with the question of
how the major powers can achieve that peace — that is, how they
can try to prevent disagreements among the states from resulting
81
in war and how they can restore the peace when wars break out,
as they will.
It will, therefore, deal with the subject matter of these hear-
ings— ^the relationships between two distinct elements of the mod-
em state system: the sovereign states on the one hand and, on the
other, the Charter and the institutions of the United Nations,
which have been superimposed on the states.
To say that our most fimdamental national interest is to help see
to it that the Charter rule against aggression is enforced by no
means implies that the Charter shoulabe enforced only or exclu-
sively by the methods of section 7. The draftsmen of the Charter
were well aware that the methods of section 7 were an experiment,
going far beyond what had been sought through the League of Na-
tions.
Against the possibility that section 7 might fail, as the League
had failed as a peacekeeping operation, it was verv much in their
minds, and they therefore carefully preserved an alternative meth-
od for enforcing article 2(4), the traditional method of individual or
collective self-defense, which has been an integral part of inter-
national law for centuries.
The United Nations is not and cannot become a world govern-
ment or a superstate. It is an organization created by a treaty
among the nations, designed to facilitate their voluntary coopera-
tion as equally sovereign states. It is also endowed with the ex-
traordinary power to make legally binding "decisions" in the exer-
cise of its extraordinary powers of peacemaking under section 7
and, especially, the power to take military action under article 42
of the Charter when diplomacy, conciliation, arbitration, and the
other peaceful methods for preserving or restoring peace have
failed.
When the United Nations began to function in 1945, it was gen-
erally assumed that the procedures prescribed by articles 42 and
43 would be the principal if not quite the exclusive way in which
the peace would be preserved and restored if war should break out.
This assumption has turned out to be entirely unrealistic.
The Charter prohibition of aggression has been enforced so far,
insofar as it has been enforced at all, only by military actions of
"individual or collective self-defense." Article 51 of the Charter says
that individual and collective self-defense is an "inherent" right of
states which nothing in the Charter can "impair."
Nothing demonstrates the hybrid character of the United Na-
tions as an institution more clearly than its provisions for keeping
the peace. Those provisions reveal that the United Nations
purports to be both an organization for fostering peaceful coopera-
tion among the sovereign states as an international body endowed
with the authority to coerce those sovereign nations — except for the
great powers which are permanent members of the Security Coun-
cil— in order to keep the peace.
In a feat of epic inconsistency, the Charter envisages two equally
legal and equally legitimate procedures for enforcing its rule
against aggressive: actions of "individual and collective self-de-
fense" and actions of "collective security."
Actions of self-defense are undertaken by the aggnnieved states in
the exercise of their "inherent" sovereignty and do not require the
82
permission of the council. That point is going to be a very impor-
tant one as the peace operations of the United Nations continue to
evolve.
Actions of self-defense can be pursued by the injured states until
peace is restored by the agreement of the belligerents or until the
Security Council succeeds in restoring peace under section 7. On
the other hand, "enforcement actions" can be undertaken only
under the direction of the Security Council in accordance with the
procedures authorized in articles 30 to 50 of the Charter.
Those articles constitute the principal innovation of the Charter
as compared with the covenant of the League. They call for the es-
tablishment, as Dr. Luck pointed out, of a standing military force
to prevent and, if necessary, to defeat aggression.
Thus far, articles 39 and 50 of the Charter have been dead let-
ters. It is very important for us all to appreciate that because the
yearning for the success of the United Nations as an institution is
very deep seated and we often attribute success to it where there
has not been success.
With the possible exception of the controversial and unhappy
United Nations intervention in the Congo during the early 1960's,
there have been no Security Council "enforcement actions" in the
history of the United Nations. The defeat of aggression in Korea
and in Kuwait was accomplished by coalitions of nations exercising
their right of collective self-defense.
The Security Council approved those actions but, under article 51
of the Charter, approval by the Security Council was not legally
necessary.
Mr. CoNYERS. Excuse me. Professor Rostow, Time is closing in on
us.
Mr. Rostow. All right.
Mr. CoNYERS. Professor Turner has not had a shot at us yet and
we have questions for you, as well.
Mr. Rostow. All right.
Mr. CoNYERS. If you could put a conclusion on it, because we do
have the entire statement, and then we will be able to close this
thing down that way.
Mr. Rostow. I take it that my prepared statement will be in the
record?
Mr. CoNYERS. Yes, sir, and will be reproduced in its entirety.
Mr. Rostow. What time do you want to adjourn, Mr. Chairman,
Mr. CoNYERS. Well, I would rather approach it like this: if you
could close down in a few minutes, then we could recognize Profes-
sor Turner and begin our questions.
Mr. Rostow. All right. I will be glad to do that.
I think the principal focus of the conversation this morning has
been on the so-called peacekeeping operations. They are not specifi-
cally authorized by the Charter. They were undertaken, as has
been pointed out, as noncoercive auxiliary assistance in facilitating
diplomacy and they have all been conducted thus far with the per-
mission of the states where the forces were in action. The attempt
has been to maintain the neutrality of the United Nations forces
as between different factions within the states.
The Congo operation in the early 1960's was the paradigm for all
that follows. It broke down on precisely the issue which is causing
83
so much trouble in the former Yugoslavia today. That is to say, if
there was a great deal of turbulence and a conflict going on, it
proved impossible for the United Nations peacekeeping forces to re-
main totally noncoercive. That is how the Congo operation ended.
There was a lot of shooting going on and, the United Nations forces
got tired of it. The Indian component in the peacekeeping army
beat up on the Belgian troops and the mercenaries who were sup-
porting the secession of Katanga.
There is a big controversy as to whether that move had been au-
thorized. It happened, nonetheless, and we see it now in Yugo-
slavia, with the actual use of coercive force against one party rath-
er than another, where there is a suspicion that one party is guilty
of aggression.
As Mr. Luck pointed out, it is important to distinguish chapter
VI and section 7 operations. It is often impossible to do so and the
cooperation between United Nations forces. United Nations peace-
keeping forces and national forces exercising national rights is be-
coming very cloudy and very difficult. I don t think that confusion
can be solved, however, by a definition produced by the Congress
of the United States or, indeed, by changes in the United Nations
Charter. It just has to be worked out as part of a common-law proc-
ess.
I myself think it would be a profound mistake for the United
States now to try to form an article 43 force under the Charter. I
think that article 43 should be regarded as a dead letter and left
to slumber in peace because it is impossible for the United Nations
to be a peace-enforcing organization. The fundamental reason for
that fact is the veto — and the United Nations could not exist for
a moment without a veto. In other words, nations are not going to
entrust their defense to an organization that can be paralyzed in-
stantly by the veto.
In general, the states don't trust each other enough to make arti-
cle 43 a reality. Therefore, I think we should accept the fact that,
while the United Nations can do a great many things very usefully,
while it can be a catalyst for a conciliation, a forum for conciliation,
undertake peace missions to facilitate negotiation where there is a
will for negotiation, there is one thing this 50 years of experience
has demonstrated: the United Nations cannot enforce article 2(4).
That is a function which only the major powers, or a decisive num-
ber of them, can fulfill and that function will remain what it was.
In other words, the only peacekeeping process that can work is
cooperation among the great powers, like tnat which kept the peace
in Europe during the entire 19th century.
[The prepared statement of Mr. Rostow follows:]
84
Congress of the United States
103rd Congress 2nd Session
House of Representatives, Committee on Government C^perations
Oversight Hearing on U.N. Participation Act of 1945
March 3, 199A
Statement by Eugene V. Rostow
I am honored, Mr. Chairman, by your invitation to participate
in the Hearings you have scheduled on whether the United Nations
Participation Act provides "a workable and sufficient framework"
for United States participation in United Nations peace-keeping
operations in the changing world.
I should start my statement today by explaining the studies I
have been engaged in during the last few years, because those
studies, and the conclusions to which they have led me, are the
source and context of the testimony I have prepared for you.
I am conducting a research project on the foundations of
American foreign policy. The first book contemplated by my
research design. Toward Managed Peace, was published by the Yale
University Press about eight months ago. A paper back edition has
just been issued by the National Defense University Press under the
title, A Breakfast for Bonaparte. That book attempts to define
1
85
the national security interest of the United states--what we should
fight for even in the nuclear age. The answer it offers is that
our most fundamental national security interest is in the
management of the state system as a system of peace. Success in
that effort requires that the state system be based on a favorable
balance of power, and directed by the major powers, or a decisive
number of them, in ways which keep the peace in accordance with the
norms of international law. For our time, most of the legal norms
supposed to govern the international use of force by states or from
states are stated in the Charter of the United Nations.
The second volume, tentatively called "Managing the Peace",
will deal with the question of how the major powers can achieve
that end- -that is, how they can try to prevent disagreements among
states from resulting in war, and how they can restore the peace
when wars break out. The book will deal, therefore, with the
subject matter of these hearings --the relationships between two
distinct elements of the modern state system: the sovereign states,
on the one hand, and on the other, the Charter and the institutions
of the United Nations, which have been superimposed on the states.
To say that our most fundamental national interest is to help
see to it that the Charter rule against aggression is enforced by
no means implies that the Charter should be enforced only, or
86
exclusively, by the methods of Chapter VII. The draftsmen of the
Charter were well aware that the methods of Chapter VII were an
experiment, going far beyond what had been sought through the
League of Nations. Against the possibility that Chapter Vll might
fail, as the League failed, they carefully preserved an alternative
method for enforcing Article 2(4), the traditional method of
individual or collective self-defense, which has been an integral
part of international law for centuries.
The United Nations is not and cannot become a world government
or a superstate. It is an organization created by a treaty among
the nations, designed to facilitate their voluntary cooperation as
ecjually sovereign states. It is also endowed with the power to
make legally binding "decisions" in the exercise of its
extraordinary powers of peace making under Chapter VII, and
especially the power to take military action under Article 42 of
the Charter when diplomacy, conciliation, arbitration, and the
other peaceful methods for preserving or restoring peace have
failed.
When the United Nations began to function in 1945, it was
generally assumed that the procedures prescribed by Articles 42 and
43 would be the principal if not quite the exclusive way in which
the peace would be preserved and restored if war should break out.
This assumption has turned out to be entirely unrealistic. The
87
Charter prohibition of aggression has been enforced so far, insofar
as it has been enforced at all, only by military actions of
"individual or collective self-defense." Article 51 of the Charter
says that individual and collective self defense is an "inherent"
right of states, which nothing in the Charter can "impair."
Nothing demonstrates the hybrid character of the CJnited
Nations as an institution more clearly than its provisions for
keeping the peace. Those provisions reveal that the UN purports to
be both an organization for fostering peaceful cooperation among
the sovereign states and an international body endowed with
authority to coerce those sovereign nations (except for the great
powers who are permanent memberB of the Security Council) in order
to keep the peace. In a feat of epic inconsistency, the Charter
envisages two ecjually legal and equally legitimate procedures for
enforcing its rule against aggression--actions of "individual and
collective self-defense," and actions of "collective security."
Actions of self-defense are undertaken by the aggrieved states in
the exercise of their "inherent" sovereignty, and do not require
the permission of the Council. They can be pursued by the injured
states until peace is restored by the agreement of the belligerents
or until the Security Council succeeds in restoring peace under
Chapter VII. On the other hand, "enforcement actions" can be
undertaken only under the direction of the Security Council, in
accordance with the procedures authorized by Articles 39-50 of the
Charter. Those Articles constitute the principal innovation of the
88
Charter as compared with the Covenant of the League of Nations.
They call for the establishment of a standing military force to
prevent and if necessary to defeat aggression. That force would
consist of designated national forces which could be called into
United Nations service by the Security Council. Its operations
would be controlled and directed by the Security Council and the
Secretary General of the United Nations, and by its Military
Committee .
Thus far. Articles 39-50 of the Charter have been dead
letters. With the possible exception of the controversial and
unhappy U.N. intervention in the Congo during the early 1960s,
there have been no Security Council "enforcement actions" in the
history of the United Nations. The defeat of aggression in Korea
(1950-54) and in Kuwait (1990-91) was accomplished by coalitions of
nations exercising their right of collective self-defense. The
Security Council approved those actions, but under Article 51 of
the Charter, approval by the Security Council was not legally
necessary. In each case, military operations were conducted not by
the Secretary General of the UN under the direction of the Security
Council, as contemplated by Articles 42 and 43, but by an American
general under the command of the President of the United States.
Nearly fifty years of experience with the Charter and the
United Nations as an institution demonstrate that world politics is
89
not yet ready for the methods contemplated by Article 39-50. The
Cold War of the generation between 1945 and 1990 was not the only
reason the Military Committee and the United Nations armed force
contemplated by Article 43 did not come into being. Nationalism
has proved to be a far more powerful force than supra-nationalism.
The states simply do not trust each other enough to commit their
fate to the Security Council as it is presently constituted, or as
it may be constituted in the future. The veto of the permanent
members is an indispensable feature of the Council. It could not
exist without the great-power veto. As Martin Wight pointed out
years ago, however, the veto offers the nations only the bleak
choice between great power unanimity and anarchy. Therefore the
Security Council can never be a substitute for procedures of
collective self-defense, like those of NATO. Even if the Security
Council could become a strong and effective peace-making body, the
nations would have to insure themselves against the risk of a
Security Council veto. It follows that the nations will and must
preserve their sovereign authority to exercise their right of self-
defense without the permission of the Security Council.
This is why the widespread hope that United Nations
peacekeeping or enforcement actions could reduce the burdens on the
United States is so unrealistic. Only the major powers can keep
the peace. In dealing with a future Hitler or Stalin, the same few
nations --the United States, NATO as a whole, perhaps Japan or
Russia--would have to provide the bulk of the troops, planes and
90
ships, whether the major powers acted through the Security Council
under Article 42 or in the name of collective self-defense under
Article 51.
Even the most artful draftsmanship cannot solve this dilemma.
The provisions of the Charter for Security Council enforcement of
the rule against aggression should continue to be treated as an
aspiration for the future, not the normal rule for every-day
practice. Keeping the peace under the Charter can only be
accomplished by the major powers conducting a concerted diplomacy
of peace, whether they act with or without the approval of the
Security Council.
To be effective, that diplomacy would have to be backed by
their visible readiness to use force if necessary, either in
"enforcement actions" or in "collective self-defense," as may be
politically preferable at the time. Rhetoric aside, the crucial
difference between the two procedures is that Security Council
Resolutions have to be voted, and can be vetoed. Both procedures
are equally legitimate under the United Nations Charter.
Despite these considerations, the collapse of the Soviet Union
has stimulated renewed support for establishing a standing UN force
under Article 43 of the Charter. The advocates of such a course
argue that the military actions of a U.N. standing force would be
true "enforcement actions" initiated and controlled by the Security
91
Council, as distinguished from actions of "individual or collective
self-defense," even if they are approved by the Security Council.
People of this persuasion think that the world is under a moral
obligation to fulfill the original intent of the Founding Fathers
of the United Nations, and are correspondingly reluctant to reach
the conclusion that Wilson's great dream of a League to keep the
peace has failed. But the stubborn fact is that Wilson's dream has
failed. The reason for its failure is that it does not correspond
to the nature of the state system and the deeply rooted loyalties
of human beings to their own states.
As an institution of government, the United Nations has many
useful functions. It is a forum for diplomacy. Its committees and
commissions are often catalysts in proposing desirable policies and
the text of treaties for carrying them out. It has developed
capacities for mediation and peace monitoring of great value to the
state system. But it will never be capable of peace enforcement
actions on the scale of the Korean War or the war in the Persian
Gulf. It can and does use so called "peace-keeping forces" as
ancillary to diplomacy in facilitating negotiations by monitoring
cease fire or armistice agreements, and the like. But such
activities should be sharply distinguished from "enforcement
actions . "
While the Charter of the UN should remain the constitution of
the state system, the Security Council cannot assure the security
8
92
of that system against aggression. There is a persistent opinion
in the West that keeping the peace through the multilateral
procedures of the United Nations is morally superior, or somehow
more "legitimate, " than acting in self-defense unilaterally or with
a coalition of Allies like NATO. That view is a pernicious myth,
and one of the main purposes of my new book on managing the peace
will be to help dispel its influence.
It may be that political experience with the effort to
reconcile the Charter powers of the Security Council and those of
the states to exercise their inherent powers of individual and
collective self-defense may result in a practical modus vivendi
along the lines of the procedure used in the Korean War and the
Gulf war: that is, a vote by the Security Council blessing what the
parties are doing independently by way of self-defense.
There are two objections to such an accommodation. First,
both domestic and international political pressures would develop
to make prior Security Council approval of the use of force in
self-defense obligatory as a practical matter. Such an outcome,
however appealing, must be resisted at all costs for the reasons
given in the first part of this Statement. So long as nations
exist--and they will exist for a long time--they will not and
should not qualify in any way their ultimate right to decide for
themselves when to fight for their survival. Secondly, it is
morally repulsive--and dangerous to boot--to build policy on
93
illusion and deception- -namely, the illusion that the Wilsonian
procedures of Chapter Vll are in fact working when they are not.
Thus President Truman liked to call the Korean War a "United
Nations police action." That was not true. It was possible to
obtain Security Council Resolutions supporting the Korean War only
because the Soviet Union was absent as a protest against the
presence of the Chinese regime in Taiwan in the Chinese seat . The
worst consequence of using false symbols in behalf of good causes
is that of self deception.
The ideas in this introduction and summary are developed
further in two recent articles which I file with this statement for
your convenience and that of your staff: Should Article 43 of the
U.N. Charter be Raised from the Dead? (1993), republished as a
pamphlet by the N.D.U. Press, and Until What? Enforcement Action or
Collective Self -Defense?, which appeared in the American Journal of
International Law in July, 1991.
IX.
Against this background, let me turn to the Questions posed by
your letter of 2 November. In that letter you write that the broad
theme of these Hearings is whether the United Nations Participation
Act provides "a workable and sufficient framework" for United
States participation in U.N. peace keeping operations in the
10
94
changing world. And you ask that I discuss "with some clarity" my
understanding of how the current legal structure of the U.N.
Charter and relevant U.S. law govern U.S. participation in U.N.
peace-keeping and peace-making operations, what deficiencies and
ambiguities that structure has, and how I should propose to correct
or improve that structure in order to facilitate effective peace-
keeping operations in the future.
As I remarked earlier, the U.N. Charter is a treaty, and
therefore, from the point of view of domestic law, part of the
supreme law of the United States. The President's duty is to see
to it that the Charter, like other treaties and statutes of the
United States, is "faithfully executed." The President therefore
has a wide range of discretion in interpreting and applying the
Charter, like other laws, both in instructing our representatives
in the United Nations how to vote, and in other fields as well.
These are essentially executive functions. Congress has parallel
legislative powers in relation to the Charter. As the United
Nations Participation Act demonstrates, it provides for the
personnel and infrastructure necessary to facilitate American
participation in the work of the U.N., especially in the areas of
the U.N.'s work which may involve the use of armed force, and
passes legislation which sometimes raises questions about whether
it trespasses on the President's executive powers, including those *
of the Commander-in-Chief of the Armed Forces. '
11
95
Thus the basic legal structure of our relationship with the
United Nations is one of cooperation between Congress and the
President in carrying out the obligations of the nation under a
treaty, like the law governing our participation in NATO, the
Organization of American States, and other international agencies.
For reasons I shall offer in my answer to your third (question,
below, I believe that the U.N. Participation Act provides a
suitable and effective framework to govern U.S. participation in
U.N. peacekeeping activities. In my judgment, the troubles we have
experienced recently in Somalia and Haiti were not caused by
deficiencies in the legal structure governing the relationship of
the United States to U.N. peace-keeping operations, but by mistakes
of judgment in the conduct of these operations, and the normal
vicissitudes of politics and war.
1 . Your first specific question is whether "peace-keeping,
peace-making, peace enforcement, and nation-building need to be
defined, redefined, or clarified as a matter of law both
internationally and domestically. My answer to that question is a
flat "No". It is true that these words are not always used
uniformly, but I believe that an attempt to codify them, and to
control their natural growth in response to experience, would be
futile, and could serve no useful purpose. They are words which
are rapidly evolving amd will continue to evolve .is state practice
changes .
12
96
"Enforcement actions" is the only one of those phrases which
has a reasonably clear and consistent denotation under the Charter.
As I remarked earlier, the phrase "enforcement actions" is almost
always confined to actions taken by the Security Council under
Articles 39-50 of the U.N. Charter in order to maintain or restore
international peace and security when peaceful means for resolving
the dispute have failed. The phrase is used in Article 45. With
the possible exception of the conflict in the Belgium Congo some
thirty years ago, there have not been any Security Council
enforcement actions in this sense in the history of the U.N. And
one should note that The International Court of Justice in the
Hague said categorically that the Security Council effort to pacify
the Congo in 1960-65 was not "an enforcement action, " but part of
its diplomatic campaign to facilitate the birth of the newly
independent Republic of the Congo.
In 0.N. usage, the phrase "peace -keeping" seems to be confined
to the deployment of small and lightly armed military contingents
whose missions are to patrol between belligerents, after a cease
fire or armistice has been reached, in order to reduce the risk
that the cease-fire or armistice agreements might break down. The
International Court of Justice has decided that the Security
Council has the implied power under the Charter to establish such
forces as a way of making the Council's conciliation and mediation
efforts more effective. Each "peace-keeping" mission of the U.N.
has operated under somewhat different Security Council or General
13
97
Assembly Resolutions, adapted to the particular situations in which
the forces are to function.
Those resolutions share two characteristics, however. All the
missions are viewed as diplomatic rather than military; and the
arrangements are intended scrupulously to respect the sovereignty
of the states where the forces are stationed. For example, during
the tense days before the Six Day War exploded in the Middle East
in 1967, President Nasser of Egypt asked D Thant, the Secretary
General of the D.N., to remove certain United Nations peace-keeping
forces on the frontier between Israel and Egypt. U Thant claimed
he had no authority to delay the withdrawal of the O.N. troops;
they withdrew at once, thus precipitating the war. What U Thant
forgot, or never knew, was that in 1957, when Israel withdrew from
the Sinai after the Suez Crisis, it was agreed that if Nasser
attempted to have the UNEF forces withdrawn, the matter would be
remitted at once to the Security Council.
"Peace-making" should be considered as part of the Security
Council's power to engage in enforcement actions under Article 42.
"Nation building" is a vague phrase of unsettled meaning
outside the realm of national and international programs of
assistance to the less developed countries. It is often a subject
for action by military forces during and after wars, through
occupation or otherwise.
14
98
2 . Should our country enter into Article A3 agreements with
the United Nations (Security Council) as contemplated by the U.N.
Charter and by the U.N. Participation Act of 1945, as suggested by
Secretary General Boutros Boutros-Ghali to govern the number and
types of military forces we contribute to U.N, enforcement actions
authorized under Chapter VII of the U.N. Charter? No. For the
reasons advanced in this statement and in the Articles I have
submitted for the record of this Hearing, I believe the time has
come to realize that the procedures proposed in Articles 39-50 of
the U.N. Charter for peace enforcement by the Security Council are
unworkable, and will remain unworkable, not only because of the
veto, but because of the strength of the national principle in the
structure and dynamics of the state system. The states simply do
not trust each other enough to delegate their destinies to the
Security Council. For this reason, and because of the
uncertainties of the veto, the nations cannot and will not give up
their right of self-defense. It follows that I oppose even more
categorically the recent suggestion by Sir Brian Urquart, the
distinguished British civil servant who held high office in the
U.N. Secretariat for many years, that the Security Council form a
Foreign Legion, a standing army of mercenaries which, if
sufficiently strong, could constitute a threat to national'
sovereignty of unimaginable gravity. The Charter reciuirement that
U.N. forces be national forces of member states, seconded for U.N.
service, is a matter of fundamental principle.
15
99
3 . Is the D.N. Participation Act of 1945 effective and how
could it be improved? The 1945 Act consists principally of
arrangements for establishing and organizing U.S. representation to
the United Nations and its subsidiary bodies. I know of no policy
difficulties which have arisen about those parts of the statute.
Questions have arisen, however, about the current appropriateness
of Sections 5, 6, and 7 of the Act.
Section 5 deals with measures the Security Council has decided
to take under Article 41 of the Charter, which authorizes the
Council to apply economic or political sanctions not involving the
use of armed force. The section contains some provisions about the
problem of chrome from Southern Rhodesia which have ceased to be
relevant, but otherwise seem unobjectionable. If there is to be a
considerable revision of the Act, they could be dropped.
Section 6 purports to "authorize" the President to negotiate
a special agreement or agreements with the Security Council under
Article 43 of the Charter for the provision of United States forces
to the Council for the purpose of carrying out enforcement actions.
Despite my strongly held view that Article 43 of the Charter should
be allowed to remain a dead letter, I should advise Congress to
permit the sleeping dogs of Section 6 of the 1945 Act to slumber in
peace. Familiar and insoluble problems of constitutional law
about the distribution of the war powers between the President and
Congress lurk beneath its lines, and it recalls the battles of 1919
16
100
which kept the United States out of the League of Nations. There
is no reason to go through another round of that debate unless it
is really necessary to do so.
Besides, as I noted earlier, the Security Council has never
sought to activate Article 43. It has never undertaken an
enforcement action, except perhaps for the controversial Congo
operation thirty years ago, and is unlikely to do so soon.
Nonetheless, the future is truly unpredictable. One day it may be
politically desirable to enforce Article 2(4) of the Charter
through the procedures of Chapter VII . Therefore I suggest that
you not revise nor repeal Section 6. It does no harm where it is,
and removing it from the statute would send waves of alarm
throughout the world as a signal that the United States was indeed
returning to isolationism.
Section 7 of the act deals with seconding United States
personnel to the United Nations for cooperative action in support
of United Nations activities "which do not involve the employment
of armed forces contemplated by chapter VII." Here again, I can
see no reason for revising the statute.
4 . Is there a clear and workable legal framework currently in
place that provides sufficient guidelines to determine what role of
United States military forces should be in future U.N, peace-
keeping and peace -enforcement operations?
17
101
since there have been no U.N. peace -enforcement operations, I
make no comment on that phase of the (juestion beyond noting that in
the Korean War and the Persian Gulf operation, the two actions
which most closely resembled D.N. enforcement actions in character,
there was no serious difficulty about coordinating the activities
of the allied command and the Security Council.
As for U.N. peace -keeping operations, I venture two general
observations. First, we have had no diffuclty in making
satisfactory arrangements for command and control in such
operations when the United Nations wished us to participate, and we
did so as well. These situations have differed greatly in
structure and mission in the past, and will undoubtedly continue to
do so in the future. Their plans and operational documents have
differed greatly as well. My second general comment on the current
controversy is that is always a mistake to try to legislate in
detail for situations which are bound to be different in every
respect. Even the much mooted question of insisting on American
commanders for American military personnel is not at all what it
sometimes seems to be. United States units fought under the
command of Marshal Foch and many lesser Allied commanders in the
First World War, and again in the Second World War. In U.N peace-
keeping operations, no state need send troops unless the
arrangements defining their role is satisfactory to it.
5. What is or should Congress' role be in authorizing U.S.
18
102
forcea for U.N. or multi-national peace-keeping or peace-
enforcement operations.
This question, of course, raises issues of constitutional law
which have been actively debated in the United States since 17 93,
when President Washington decided that our 1788 Treaties of
alliance with France permitted him to issue a Proclamation of
Neutrality without benefit of an Act of Congress. The Great
European War had been resumed in that year when the French declared
war on Great Britain. Some members of Congress believed that the
Treaties re<iuired the United States to join France in the war; to
allow France to hold prize courts and to fit out vessels of war in
American ports; and to protect the French Islands in the West
Indies against the British Navy. President Washington issued the
Proclamation nonetheless, believing that the pro-French sympathies
of Congress and the American people made it impolitic to take the
issue to Congress, and that in any event the President had the duty
to execute the Treaty in accordance with his own interpretation of
it until Congress passed legislation to the contrary.
Hamilton's view of the respective roles of the President and
Congress in that controversy represents the pattern of
constitutional usage which has prevailed in practice and in the
Courts ever since. It prevailed also in Congress when it passed
the United Nations Participation Act in 1945. The United Nations
Charter was the first United States Treaty with military
19
103
implication since Franklin's Treaty of Alliance with France in
1788.
In the process of ratifying the Charter and passing the U.N.
Participation Act, both the Roosevelt and the Truman
Administrations took pains, in consultation with many members of
Congress, to avoid the mistakes on the issues which had led to the
failure of the Senate to give its consent to the ratification of
the treaty of Versailles. It was a wise and persuasive compromise,
and I commend it to you as an answer to the (juestion you have posed
for me .
In Section 6, the statute purports to "authorize" the
President to negotiate a Special Agreement or agreements with the
Security Council making specified United States forces available to
the Council under Article 43 of the Charter. Both the relevant
House and Senate Committees noted that while Congressional approval
was not necessary to authorize the President to negotiate such
agreements, it was nonetheless wise and prudent to do so in order
to reassure other countries of the strength of our commitment to
the policy of enforcing the Charter rule against aggression by
multilateral action.
Secondly, Section 6 provides that agreements made pursuant to
Article 43 agreements shall be subject to the approval of Congress
by Act or Joint Resolution, not by treaty: that is by a simple
20
104
majority, not a two-thirds majority. And finally. Section 6
specifically notes that the approval of Congress is not required
for each individual case where United States troops are used.
Both the House and senate committee reports offer two reasons
for this conclusion:
"Preventive or enforcement action by these forces upon the
order of the Security Council would not be an act of war but
would be international action for the preservation of the
peace and for the purpose of preventing war. Consecjuently,
the provisions of the Charter do not affect the exclusive
power of the Congress to declare war.
"The committee feels that a reservation or other
congressional action such as that referred to above would
also violate the spirit of the United States constitution
under which the President has well-established power and
obligations to use our armed forces without specific approval
of Congress."
Section 6 of the Act and the Congressional debates and
Committee Reports provide a crucially important answer to your
question. It would in my view be both unwise and unnecessary to
attempt to revise Section 6 now. It has provided an adequate
framework for our cooperation with the U.N., and should continue to
do so.
21
105
Mr. CoNYERS. Thank you very much, Professor. We now have
Professor Robert F. Turner, associate director. Center for National
Security Law, School of Law, University of Virginia. Please proceed
and, if you could summarize your comments, we will enter into the
record your statement in its entirety.
STATEMENT OF ROBERT F. TURNER, ASSOCIATE DIRECTOR,
CENTER FOR NATIONAL SECURITY LAW, SCHOOL OF LAW,
UNIVERSITY OF VIRGINIA
Mr. Turner. Thank you, Mr. Chairman. It is a great pleasure to
be here today with this distinguished panel. I have gone through
my summary and struck out every other paragraph so that should
speed it up some.
To summarize briefly, I believe these are very sad times for the
United States. After doing what should have been the hard work —
the fall of the Soviet empire and our victory in the Persian Gulf—
we had an incredible opportunity to build a new world order of
peace, justice, and international cooperation.
In my view, we have tragically pretty much frittered away that
golden opportunity. I beHeve the system is "broke." I am going to
focus on the constitutional and internal issues more than the Unit-
ed Nations side. I don't believe the system is "broke" because the
President has inadequate power or because he has been infringing
upon the power of Congress to declare war or any other legislative
power.
The President has ample authority under existing law and the
Constitution. Under the commander in chief clause, his duty to see
"faithfully executed" such treaties as the United Nations Charter
and, particularly, his "executive power" conveyed in article II, sec-
tion 1.
Indeed, a good part of my prepared testimony discusses the for-
gotten "executive power" clause, which Founding Fathers like Jef-
ferson, Washington, John Jay, John Marshall, and others said gave
the President the general control of the Nation's foreign intercourse
subject only to those checks vested in the Congress and the Senate
by the Constitution.
As Jefferson put it, "The transaction of business with foreign na-
tions is Executive altogether." Hamilton commented that 'The
power of the Legislature to declare war," being an
"exception . . . out of the general" grant of executive power to the
President, "ought to be extended no further than is essential" to its
execution.
In my testimony, I note that there has been a great deal of de-
bate on what the "declare war" clause means by focusing on the
meaning of the word "war." I think a more useiul approach is to
look at the words "declare war" which were, in fact, a term of art
in international law when the phrase was embraced for our Con-
stitution.
I provided quotes from people like Gentili, Grotius, Vattel,
Burlamaqui, and other prominent international lawyers who were
widely read by the Founding Fathers to show that, in fact, histori-
cally, even from Greek and Roman times, declarations of war have
been associated with aggressive or offensive hostilities and not with
defense.
106
It is sometimes said that the power of ConCTess to declare war
has been weakened because of "imperial" Presidents. I would argue
that a better explanation is that we have given up our right to en-
gage in aggressive war, first through the Kellogg-Briand Pact of
1928 and, more recently, through article 2(4) of the United Nations
Charter.
When Congress approved the United Nations Participation Act in
1945, both houses included identical language in their reports
which said that:
Preventive or enforcement action by these forces upon the order of the Security
Council would not be an act of war. . . . Consequently, the provisions of the Char-
ter do not aflect the exclusive power of the Congress to declare war.
It went on to say:
... a reservation or other congressional action . . . would violate the spirit of
the . . . Constitution under which the President has well-established powers to use
our armed forces without specific approval of Congress.
They were talking, of course, about article 43 agreements; but
the fundamental question of, "Is the use of force under the author-
ity of the Security Council an act of war" would seem to be the
same.
Although I conclude that the President is not legally required to
obtain the approval of Congress for operations sucn as those in So-
malia and Haiti; as a matter of wise policy and prudence, I strong-
ly believe it is a good idea for the President both to consult care-
fully with Congress and to get Congress formally on board, if Con-
gress will behave responsibly.
Indeed, a good portion of my prepared testimony is devoted to
giving sever^ examples in which I believe Congress has not be-
haved responsibly, where Congress has tried to micromanage or en-
gaged in partisanship and, as a result, American lives have been
lost.
I go through the history of the 1983 Lebanon deployment where,
after the major congressional debate, the Syrian Foreign Minister
said the Americans were "short of breath." We then intercepted a
message from Moslem terrorists saying, "If we kill 15 more Ma-
rines, the rest will go home." This was right after the Senate had
voted, I believe by a four- vote margin, to continue the deployment
for 18 months — ^but with Members saying, "If there are any more
casualties, we can reconsider the issue." Days later, 241 Marines
were killed.
In the Gulf war I don't believe Congress behaved responsibly. In-
deed, I testified before the Senate Judiciary Committee in January
1991, only days before the vote, and listened in shock as Members
of the Senate talked about impeaching the President if he acted
without the approval of Congress against Saddam Hussein. I could
only imagine how that message was being interpreted back in
Baghdad.
When the Congress finally did pass what, on the Senate side,
was designated Senate Joint Resolution 2, it did not authorize the
President to implement Security Counsel resolution 678, but only
the much narrower resolution 660, which only authorized the
President to expel Iraqi forces from Kuwait.
Of course, that didn't stop Members of Congress from later say-
ing that President Bush had been a wimp for stopping short of
107
Baghdad and leaving Saddam Hussein in power. In fact, a reading
of the legislation passed gave him no option to go beyond the bor-
ders of luiwait.
Several people on the panel have talked about Somalia, specifi-
cally the incident last October 3, when nearly 100 American sol-
diers were killed or wounded. I think if you look closely at what
happened there. Secretary of Defense Aspin rejected a request for
Abrams tanks that might well have saved some of those lives, and
his motive clearly was that he was concerned that such a deploy-
ment might anger Congress.
And so it's very important to understand that what Congress
does in this area has an impact on international events and on the
lives of our soldiers.
Let me only conclude with a call for bipartisanship. President
Clinton is the onlv commander in chief we're going to nave for the
next few years. There's no guarantee that his policies are going to
work, but the one policy that is certain to fail is for Congress to
keep grabbing at the helm in times of trouble.
The situation in the former Yugoslavia today is critical, and I be-
lieve how Congress responds to this may help determine whether
we repeat the tragedy of Beirut or whether we have a chance of
success.
Obviously, Republicans are going to have a gn^eat temptation to
be partisan in tnis case. There are partisan benefits to be gained,
and there is a clear precedent fi-om the way the Democrats behaved
in the Reagan-Bush years.
In the snort term, the partisan approach may seem to make
sense, but I believe it would be a tragic mistake. Before we sit back
and allow an abandoned and weakened president to crash the ship
of state onto the rocks, we need to keep one thing in mind: it is
our ship.
This is a time for national unity, and to that end, let me leave
you with a quotation from a distinguished Republican Senator from
Michigan, the late Arthur Vandenberg. Widely viewed as the father
of modern partisanship. Senator Vandenberg said in Detroit, on
February 10, 1949 — and I'll close with this —
It will be a sad hour for the Republic if we ever desert the fundamental concept
that politics shall stop at the water's edge. It will be a triumphant day for those
who would divide and conquer us if we abandon the quest for a united voice when
America demands peace with honor in the world.
In my view, notning ha? happened to absolve either Democrats or Republicans
from continuing to put their country first. Those who don't will serve neitner their
party nor themselves.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Turner follows:]
108
C()\(;ui.ss, THi: Coxsi in nox,
AM) im: Ni.u WoKi.i) Oudi.u:
The Lciiol irame work for iljfi'ctive
Miilliiialional l*i'aci'ki'vpiii<i Operations
0h
Prepared statement of
Professor Robert F. 'Himer
Associate Director
Center for National Security Law
University of Virginia School of Law
before the
Legislation and National Security Subcommittee
Committee on Government Operations
U.S. House of Representatives
Thursday • 3 March 1994
RooB 2154 • Raybuni Houae Office BuikUng
109
Contents
Executive Summary i
Introduction 1
The Constitutional Issues 3
Secrecy, Democracy, and the Eaily American Experience 4
The Committee of Secret Conespondence 4
John Jay and F«fcra/«r No. 64 6
Washington, the Senate, and Congressional Leaks 8
The Federal Convention of 1787 9
The Early Practice of Confidential Expenditures 12
The View from the I^cdcral Judiciary 15
Opinion of the Attorney General 17
Issues of Policy 18
A Presumption of Disclosure 18
Overcoming the Presumption 19
Comity and Deference to the President 19
Balancing the Interests 19
An Aggregate Figure Will Not Satisfy the Critics 20
Exposing Your Budget to "Shark" Attacks 21
Intelligence Community Budget Hgures Oug^t Eventually
to be Made Public 22
The Intelligence "Jig-Saw Puzzle" 23
Conclusion 24
110
Executive Summary
Mr. Chairman, I am grateful for the invitation to be here this morning to discuss
these very important issues. Before I begin, I would like to make the usual disclaimer —
emphasizing that the views I am expressing here this morning are personal and should not
be attributed to the Center for National Security Law, the University of Virginia, or any
other organization or group with which I may be affiliated.
Some of the questions you raised in your letter of invitation are rather complex, and
I have provided a somewhat lengthy prepared statement which I would prqx>se at this time
to submit for the record. At this time I would like to take just a few minutes to briefly
simimarize some of my conclusions.
This is in many respects a very sad time for America and the world. After doing
what should have been the hard work — helping to bring down the Soviet empire and
demonstrating in the Persian Gulf that multinaticmal collective security efforts can work —
we found ourselves a few years ago with an incredible opportunity to build a New World
Order of peace, justice, and international cooperation. But in my view we have tragically
frittered away this wonderful opportunity.
The system is "broke" — but not because the President has inadequate power or
because he has been infringing upon the constitutional authority of Congress. In my view,
the President has ample authority to plan and iiiq)lement military operations in cooperaticm
with the U.N. Security Council and other peace loving nations. His authority includes the
Commander in Chief clause of the Constitution, his constitutional duty to see "faithfully
executed" treaties like the U.N. Charter and statutes like the U.N. Participation Act of
Ill
EXECUTIVE SUMMARY— 2
I94S, and also from the "executive power" clause of Article n. Section 1, of the
Constitution.
A good portion of my prepared statement is devoted to a discussion of the
"executive power" clause, because I believe it is the forgotten key to breaking the code of
constitutional separation of powers in the foreign affairs and national security area. Many
Americans have forgotten that to the Founding Fathers — educated men, raised on the
writings of people like John Locke, Montesquieu, and William Blackstone — the term
"executive power" included within it the control of the nation's extemal intercourse.
I have included a sampling of quotations from people like Thomas Jefferson,
George Washington, John Jay, Alexander Hamilton, and John Marshall — each of them
taking the position that by virtue of the grant of "executive power" the President was the
"sole organ" of the nation in foreign affairs. Put slightly differendy, Jefferson said that
"The transaction of business with foreign nations is Executive altogether," and by virtue of
Article n. Section 1 , it belonged "to the head of that department, except as to such portions
of it as are specially submitted to the Senate."
The Founding Fathers believed that "exceptions" to the general grant of executive
power to the President were to be "construed stricdy." Alexander Hamilton, for example,
argued that "the power of the Legislature to declare war" was an "exception ... out of the
general "Executive Power" vested in the President," and thus it "ought to be extended no
further than is essendal" to its execution.
When the President orders American military fOTces into harms way to resist
international aggression or to promote some humanitarian objective approved by the
Security Council of the United Nations, he does not usurp the power of Congress "to
declare war." There has been a great deal of debate in recent years about the naeaning of the
word "war" in Article I, Section 8 — but greater insight would be gained by focusing upon
the expression "declare war."
112
EXECUTIVE SUMMARY— 3
Giving examples from classical writers like Gentili, Grodus, Vattel, and
Burlamaqui — all of whom were widely read by our Founding Fathers — I have shown in
my prepared testimony that formal "declarations of war" have throughout history been
associated with "offensive" or "aggressive" military operations — a distinction which
Madison's Notes on the Federal Convention indicates the Founding Fathers intended to
follow. The President would as Commander in Chief be able to "respond to sudden
attack," but if he decided it was in the national interest to initiate a war over some political
or economic grievance with another State, he would be required to obtain the approval of
both Houses of Congress before solemn "war" could be "declared."
It is sometimes said that the important power of Congress to declare war has been
weakened in recent years — and this is usually attributed to "Imperial" presidents. A better
explanation is to note that the kinds of "war" for which formal "declarations" were required
has been prohibited by international law — first through the 1928 Kellogg-Briand Pact, and
then through Article 2(4) of the United Nations Charter. No country in the world has
issued a "declaration of war" in more than four decades, and by treaty we have surrendered
our once sovereign right to engage in such conduct
When the Congress approved the U.N. Participation Act in 1945, the
accompanying reports in both Houses took the position that, and I quote:
Preventive or enforcement action by these forces upon
the order of the Security Council would not be an act of war
but would be international action for the preservation of the
peace and for the purpose of preventing war. Consequently,
the provisions of the Charter do not affect the exclusive power
of the Congress to declare war.
The committee feels that a reservation or other
congressional action . . . would violate the spirit of the United
States Constitution under which the President has well-
established powers and obligations to use our armed forces
without specific approval of Congress.
While this language was referring to the use of American aimed forces expected to be made
available to the Security Council pursuant to an agreement under Article 43 of the Charter,
113
EXECUTIVE SUMMARY— 4
the underlying issue is die sanoe. No declaration of war would be required by international
law for peacekeeping c^>erations approved by the Security Council, and the power of
Congress to "declare war" — a power expected by the Founding Fathers to be "construed
narrowly" — is not involved.
Although I conclude in my prepared testimony that the President is not legally
required by the Constitution to obtain the approval of Congress for such operations; for
reasons of prudence and wise policy I strongly believe it is a good idea for the President to
both consult with and seek formal resolutions of i^jproval from Congress — (^Congress is
willing to behave responsibly.
This brings me to the last point I want to make, which is perhaps the most
important. It is diat in the post Vietnam era, Congress for the most part has not acted
responsibly. I believe Congress deserves a good deal of responsibility for the failure of
deterrence and the difficulties we are now having in places like Somalia.
Much of the problem, in my view, is that Congress has learned the wrong
"lessons" firom the Vietnam tragedy. I think if you will go back and review the debates,
and then see what we know today about what caused that war and what was really going
on in connection with that conflict — ^you will discover that the critics were wrong on most
of the major arguments. For example, the contention that the war was not "aggression
from the North" but instead was run by the "National Liberation Front" in the South was
pretty much put to rest in 1983, when General Vo Nguyen Giap and other top formo-
North Viemamese leaders stated publicly that the decision to resume the struggle in the
South was made in May of 1959 by the Onnmunist Party in Hanoi.
I discuss several military deployments to illustrate die reality that congressional
reaction tends to have mOTe to do with political expediency than constitutional principle.
For example, the 1975 Mayaguez rescue — which violated not only the War Powers
Resolution but also the funding prohibition contained in the Cooper-Church laws — was
114
EXECUTIVE SUMMARY— 5
unanimously praised by the Senate Foreign Relations Committee; yet the same committee
denounced President Carter as a lawbreaker when his Iran rescue attempt failed.
Of particular concern, I identify several situations in which I believe congressional
partisanship and micromanagement have actually cost the lives of American troops. For
example, during the 1983 Lebanon deployment the President won a highly partisan vote in
the Senate with only five votes to spare — and members made it clear that if there were
further casualties they would reconsider the authorization. The Syrian Foreign Minister
announced that the United States was "short of breath," and shortly after the Congress
acted we intercepted a message from a Moslem militia unit telling other units: "If we loll 15
more Marines, the rest will go home." Days later, in the early morning hours of Sunday,
23 October 1983, a terrorist bomb killed 241 sleeping Marines and sailors. I don't believe
that would have happened had not Congress sent such a strong signal that it was about to
"pull the plug" oa the President
In the Gulf War three years ago. Congress again refused to play a responsible
role — and President Bush's efforts to persuade Saddam Hussein to withdraw his forces
firom Kuwait were countered and largely neutralized by congressional assurances that the
President lacked constitutional power to take any action against Saddam and that he might
well be impeached if he tried. Although it seems to have gone unnoticed, when Congress
finally did authorize the President to act it stopped short of his request for authority to
implement Security Council Resolution 678. The only power it gave him was to force Iraqi
troops out of Kuwait But that didn't stop Congressmen who had refused to vote to give
the President any authority to carry out the decision of the Security CouncU from later
calling Bush a "winq>" for stopping short of Baghdad and leaving Saddam in power.
A good deal of the responsibility for some of the more recent failures in places like
Somalia and Haiti rightfully belongs with the White House, where an inexperienced new
President is getting some "on the job training" and stumbling a little as he learns. Early last
month, nearly 100 American soldiers were killed or wounded in Somalia — and the expen
115
EXECUTIVE SUMMARY-
consensus seems to be that if Secretary of Defense Aspin had not rejected General Colin
Powell's recommendation to dispatch some Abrams tanks to the area many of the casualties
might have been prevented. To be sure, Congress did not make the decision, but the
evidence points to Aspin's concern that such a deployment would "angei^ Congress as the
underlying basis of die decision.
One of the realides of life is that when soldiers are sent into harms way they are
likely to encounter danger. If things go badly, many of them may come back to us in body
bags. That makes constituents angry, and it is understandable that members of Congress
would prefer not to be held accountable at the polls for such unpopalar policies.
Two decades ago. Congress oiacted the War Powos Resolution over a presidential
veto. It has been used since then to protect members of Congress from accountability. If
there is a crisis, many members riin to the hills and announce diat the President must "obey
the law." If the President succeeds and there are not many American casualties in the
process, members of Congress come down to the parade field and cany a large flag
marching along side the President But if something goes wrong, and there are large
numbers of casualties, when diey come down from the hills these same members denounce
the President as a "crook" and solemnly shoot the wounded.
This may be good politics, but it is lousy deterrence. The Soviet Union is history,
but we still live in a world with "bad guys." And the bad guys know that, if things get
tough. Congress has a rather consistent record of "pulling the plug" on the President
Congress ought to be working along side the President in a bipartisan manner,
doing everything possible to strengthen deterrence and promote peace with honor. But
deterrence is based upon percq)tions of strength and wiU — and, thanks to Congress, many
of the bad guys don't believe America has the "will" any longer to meet its commitments.
This leaves us with the choice of abandoning the dream of a New World Order of peace
and international cooperation, repurchasing our national credibility with the lives of our
sons and daughters, or — perhaps there is still time — getting Congress to accept the risks
6
116
EXECUTIVE SUMMARY— 7
inherent in any policy decision involving the use of military force and try to strengthen the
President's hand.
We may not all like him, but President Clinton is the only Conomander in Chief we
are going to have for the next three years. There is no sure guarantee that his policies are
going to woik; but the one policy that is certain to fail is for Ccxigress to keep grabbing for
the helm every time the ship of state encounters a storm.
In this regard, I believe the situation today in the former Yugoslavia is critical. I
honestly don't believe it has been handled very well to date — and on that issue I would
commend to you the insightful remarks made by President Carter's former National
Security Adviser, Zbigniew Brezinski, to a conference of the American Bar Association's
Standing Committee on Law and National Security late last year.^ The NATO air strikes
could easily provoke an increase in violence by radical Serbs in Bosnia and in the United
States. Key to their decision, I believe, will be the attitude of Congress. If you rally
behind the President and send a clear signal that the United States is determined to see an
end to the war crimes and the return of peace to the region, the President's efforts will have
at least some chance of success. But if Congress repeats the signals it sent out when the
situation got a little tough in Beirut in late 1983— telling our adversaries that if they will kill
a few more Americans Congress will "pull the plug" on the President and force a
withdrawal of U.S. forces — the tragic loss of 241 Marines in Lebanon will likely be
dwarfed by the price we will have to pay this time.
The public can be expected to be very anxious over the possibility that American
lives might be lost in a conflict that seems quite remote from our vital interests at this time;
and Republicans in particularly are likely to feel die temptation to distance themselves from
this risky policy and allow the President to "swing in the breeze" if the situation gets
worse. If they elect to follow such a course, they can point to the precedent of the 85
' "Zbigniew Bizezinski on North Korea and Bosnia," ABA National Security Law Report, December 1993.
vol. 15, DO. 12, pp. 3-4.
117
EXECUTIVE SUMMARY— 8
percent of Senate Democrats who refused to support President Bush and the United
Nations in January 1990 by voting against Operation Desert Stonn.
Despite its short-term appeal, a partisan approach would be a tragic mistake. Our
ability as a nation to deter aggression is predicated to a great extent upon the perception by
our adversaries that Congress will not undercut our President And before we sit back and
allow an abandoned and weakened President to crash the ship of state onto the rocks, we
need to keep one thing in mind — it is our ship! Now is the time for national unity, and
perhaps for prayer.
Mr. Chairman, I would like to leave you with a short quotation from the man who
is often called the "father" of modem bipartisanship, the late Senator Arthur Vandenberg of
Michigan, who said in a Lincoln Day address in Detroit on 10 February 1949:
It will be a sad hour for the Republic if we ever desert the
fundamental concept that politics shall stop at the water's
edge. It will be a triumphant day for those who would divide
and conquer us if we abandon the quest for a united voice
when America demands peace with honor in the world. In my
view, nothine has happened to absolve either Democrats or
Republicans from continuing to put their country first. Those
who don't will serve neither their party nor themselves.
118
Prepared Statement of Professor Robert F. Turner
Mr. Chainnan, I am grateful for the invitation to share my thoughts on these very
important issues with you and your colleagues on the Subcommittee on Legislation and
National Security.
I. Introduction
The end of the Cold War and the subsequent brilliant success of multinational
cooperation in the Gulf crisis produced unprecedented opportunities for world peace — a
chance to build a "New World Order" in which no rational Sute would decide upon
aggression because the perceived costs of confronting a strong and united world would
always outweigh any possible benefits. But, sadly, the United States in recent months in
my view has undermined the prospects for such a new international regime of peace — and I
would be less than candid if I did not place a substantial part of the responsibility on the
doorstep of Congress.
Time will not permit me to address in detail all of the important issues raised in your
letter of invitation; but I would like to focus my prepared statement upon three points I
consider to be critical.
• First of all, as a matter of U.S. constitutional law, I do not believe that the
President's commitment of U.S. Armed Forces to U.N. peacekeeping operations
like those in Somalia and Haiti exceeds his existing legal authority or infringes in
any way upon the legitimate powers of the Congress. On a related point, I don't
believe that any changes in domesQc law are necessary to, if I may quote from your
119
SUtement of Prof. Robert F. Turaer
3 March 1994, pace 2
letter of invitation, "conduct effective peace-keeping operations in today's changed
worid." Indeed, on both constitutional and policy grounds, I would strongly object
to any legislation designed to require congressional approval of such military
operations. If Congress wishes to act legislatively to promote effective international
peacekeeping, a good first start, in my view, would be to repeal the clearly
unconstitutional 1973 War Powers Resolution.
• Secondly — not for constitutional but for prudential reasons — I believe the
President should voluntarily keep Congress fiiUy informed and seek not only
informal advice but, if Congress will begin to behave responsibly in such matters,
the formal approval of Congress in connection with significant military operations
when time and operational security permit Congress has historically played a
tremendously important role in enhancing deterrence and helping to preserve the
peace by standing firmly alongside the President in times of crisis. That practice
changed with Viemam — largely, I believe, because Congress learned the wrong
"lessons" from that conflict — and deterrence and the cause of worid peace have paid
a price for that change.
• That leads me to my third, and perhaps most important, point. In my view.
Congress as an institution during the past quarter century has not, in fact, acted
responsibly. On the contrary, since Vietnam, Congress has time and again sought
above all else to avoid political accountability when American soldiers have been
sent into harms way. The motives for this, I believe, have been varied, ranging
from partisan political considerations to what I can only characterize as a lack of
political courage. The one thing that has been constant is that congressional
irresponsibility has greatly undermined deterrence— and in several identifiable cases
it has contributed substantially to the bss of lives of American military personnel.
120
SUIement of Prof. Robert F. Turner
3 March 1994, page 3
Few things that Congress could do would he^ more to promote international peace
and United States security than to return to the spirit of bipartisanship in foreign
policy that characterized much of the two decades following World War n.
I will be happy to attempt to answer questions on these as well as any other questions you
believe might be relevant to this hearing.
Mr. Chairman, I may be wrong about some of my perceptions. Other wimesses
may certainly reach different conclusions on each of these points. But you have asked for
my advice, and I believe the issues involved are far too serious to address in any but the
most honest and candid terms.
What I propose to do, with your approval, is to make a few brief comments about
the issue of goal clarification, the critical importance of deterrence as a strategic objective,
and the role of the incumbent Commander in Chief in these matters; and then I will turn to a
brief discussion of the three points set forth above.
Goal Clarification and the
Importance of Deterrence
It is often useful in the decision-making process to step back for a moment and
engage in some goal clarification work. As you put it in your letter of inviution, we are
here to consider "whether the U.N. Charter and the U.N. Participation Act of 1945 provide
a workable and sufficient legal framework to conduct effective peace-keeping c^ierations in
today's changing world." I would emphasize especially the words "workable,"
"sufficient," and "effective."
The fundamental laws — our Constitution at the municipal level and the U.N.
Charter in terms of the law of nations — ^provide a structural framework within which policy
decisions are to be made, either by Executive action or by statutes such as the U.N.
Participation Act and the War Powers Resolution. Individual participants may well bring a
121
Statenent of Prof. Robert F. Tmracr
3 March 1994, pasc 4
number of short- and long-tenn goals into the decision-making process; but, if we are
serious about promoting "effective . . . peace-keeping operations" we need to pursue a
"workable" strategy designed to produce that result
Some 400 years before the birth of Christ, the great Chinese strategist Sun Tzu
wrote in The Art of War that: "fTlo win one hundred victories in one hundred battles is not
the acme cf skill To subdue the enemy without fighting is the acme of skill"' In a similar
vein, I would suggest to you that if we wish to promote effective multinational
"peacekeeping" we need to understand the concept of deterrence. Our goal ought tKM be to
design a legal framework which promotes the routine deployment of American scddiers into
harms way to restore international order and fundamental values, but rather to seek an
international legal regime that will allow the world conuiuinity to deter aggression and other
forms of wrongful conduct likely to place fundamental norms at risk. Consistent with the
requirements of the Constitution which you are each bound by oath to support, the
decisions you make should, perhaps above all, be calculated to strengthen deterrence.
In its essence, deterrence is a function of perceptions of strength and will. In terms
of deterrence, it doesn't really matter how strong we are as a nation or how willing we are
to stand by our commitments to promote worid peace — except to the extent that perceptions
are fueled by reality. The bottom-line issue is whether the Saddam Husseins and
Mohamed Farah Aideeds of the worid believe that we have both the ability and the will to
insure that the costs of their misconduct will grcady outweigh any perceived likely gains.
The world community for the most part turned a blind eye to Saddam Hussein's
1980 war of aggression against Iran, and that was almost certainly a key element in his
decision to flaunt the most fundamental substantive rule of international law^ by invading
Kuwait on 2 August 1990. For all of his shortcomings, Saddam is not "crazy" or
1 Sun Tzu, The An of War Tl (iransUied by Samuel B. Griffith, 1963).
^ "All Members shall refirain in their inteniational relatioas torn the threat or use of force against the
letiitorial integrity or political independence of any stale, or in any other manner inconsistent with the
Purposes of the United Nations. " UJ*. CHARTER. Ait 2(4).
122
Sutemcnt of Prof. Robert F. Turner
3 March 1994. page 5
irrational, and he learned an important lesson during the months that followed. In 1992.
you may recall, two U.S. citizens accidentally crossed die bender into Iraq and were briefly
apprehended by Iraqi forces. Almost before word of that development reached
Washington. Iraq announced that the Americans would promptly be released and returned
to Kuwait Saddam had learned the consequences of playing "hardball" with President
Bush.
Sadly, our well-publicized inabili^ to deal effectively with Somali warlord
Mohamed Farah Aideed. who held news conferences on CNN for the world to see as
America's most elite forces searched the streets of Mogadishu to apprehend him — not to
mention the image of U.S. warships fleeing firom Port-au-Prince harbor in Haiti when
challenged by a rag-tag band of thugs^ — has done much to undo the benefits of the Gulf
war in terms of strengthening the world community's ability to deter aggression without
expending the lives of its youth. And the numerous resolutions and public
pronouncements from Congress — strong signals to friend and foe alike that the Legislative
branch would soon, once again, "pull the plug." or "tie the President's hands" (pick your
favorite metaphor) — have pretty much finished off whatever residual benefits remained
from our good fortune in Operation Desert Storm.
President Clinton is the Only
Commanuer in Chief We Have
To be sure. Congress is not solely responsible for these problems. The American
people bear a good share of the responsibility, because we selected as our Commander in
Chief an individual who not only lacked substantial expaicacc or understanding of military
and foreign affairs, but one who even i^pears to experience some discomfort when put in
the company of military people. Thanks to CNN and an active free press, the workl is very
much aware that President Clinton does not have the level of respect and affection that the
3 Few things in international affairs should have been more pfcdictable than that our ships would have been
met ill the docks by hostile forces once the Administiaiioa had announced to the world that they would be
withdrawn inunediaiely if tbeie was any violence.
123
SUtement of Prof. Robert F. Taraer
3 March 1994, page « ^
Americans in uniform have willingly given to any of his modern predecessOTS. Efforts by
his handlers to hide this, by limiting press interviews with troops or hand-picldng the
soldiers to be interviewed, have siiiq>ly made matters worse— producing stories about the
measures that have been taken to cover up the sad reality.
Few people would deny duu President Qinton is an unusually intelligent individual,
and with a little more "on the job training" he may ultimately develop into a master of
international statecraft. But I believe there would be general agreement that he has
"stumbled" a few times in his attempts to come to terms with his new reqmnsibilities; and,
to mention but one example, his on-again, off-again, threats to intervene in Bosnia-
Herzegovina have done little to enhance American credibility among either our friends or
the world's radical leaders.
Indeed, it is possible that if everyone in #us hearing room examined the issue, we
might agree upon any of several members from the Congress who would be objectively
better qualified, or with whom we would be more comfortable, as Commander in Chief.
But in real world terms, that is irrelevant The Constitution makes the President
Commander in Chief, and the American people have elected their President He is the only
Commander in Chief we are going to have for the next few years, and if there is to be any
chance at peace he must be given the opportunity to do the things entrusted to his discretion
by the people through die Consdtution.
'^'resident Lincoln once remarked that on a ship in a storm at sea, no one may wish
to see the ship go aground — and yet that may well be the result if everyone grabs for the
helm. Senator Arthur Vandenberg, the father of modem bipartisanship, often said diat our
nadonal unity was "as important as our atom bombs." Certainly the record of the past few
decades has shown that a critically inqxvtant factor in undermining deterrence — a factor
diat many of the world's "bad guys" have concluded is America's Achilles heeH — has been
* While woridng in the State Depanment in 1984 I was loU a suxy by Ambassador Vemon Wallets
conconing a once-secret visit he made at President Reagan's direction in February 1983 lo put Cuban
dictator Fidel Castro on notice that the United States would no longer toleraie illegal Cuban eRbrts lo
124
SUtemcDt of Prof. Robert F. Tanier
3 March 1994, page 7
the willingness of Congress to "pull the plug" on the President in times of crisis when there
was a serious chance of U.S. casualties or public outcry. As I will discuss below, the
ironic consequence of this tendency has been not only to make hostilities far more likely,
but also to greatly increase the risks to American sendee personneL
n. The Constitutional Framework
Mr. Chairman, let me now turn to the constitutional issues raised by your letter.
Since many of the legislative proposals that have been made are premised upon the power
of Congress to "declare War" — and Article I precedes Article n in the ccMistitutional text — ^it
seems fitting to begin with that provision. But it is also important to understand the source
of the critically important foreign affairs powers vested in the President by the Constitution,
which I shall discuss shortly.
Powers of Congress
The Power of Congress to **Declare War"
Article I, Secdon 8. of the Constitution clearly provides that "[t]he Congress shall
have Power ... To declare War " Many efforts to understand this clause begin with
an attempt to define "war." Webster offers a wide range of definitions, and even the
Supreme Court has held that "war" can mean different things for different purposes.^
ovenhrow or destabilize govenunents in Latin America. General Walters said he spoke to Castro in firm
words; but, after listening quietly for a few minutes, Castro cut him off and said words to the effect of:
"Listen, General. Don't threaten me. I happen to know the American political system very well. And I
know that, whatever Ronald Reagan or any other American president wants to do to me, your Congress
won't let him do it" (The wortls in quotation marks are my own, but they reflect the flavm of Castro's
remaiks as recounted by Ambassador Walters.)
^ For example, a conflict may be different tat purposes of a "wat clause" in an insurance policy than it is
for emergency legislation affecting individual rights.
J
125
SUtemcnt of Prof. Robert F. Turner
3 March 1994, page 8
President Truman's action in Korea, for example, was held by courts to be "war" for
certain purposes and not for others.
But I would argue that, in a constitudonal sense, the operadve term in this clause is
not "war" — an admittedly ambiguous word — but "declare war," which has a more technical
meaning. Historically, and as understood by the Founding Fathers, it was an act
associated with the initiation oi offensive hostilities. It is important to keep in mind that the
Founding Fathers were well-read men, and in this regard I would note that the second most
common lawbook found in a study of approximately one hundred private libraries in
colonial Virginia was Hugo Grotius* De Jure Belli ac Pads ("The Law of War and
Peace").* Grotius — the man widely acclaimed as the "father" of modem international
law — was one of several prominent scholars to discuss the significance of a "declaration of
war" as a legal term of an in his 1625 treatise:
To understand ... the declaration of war, we must draw an
accurate distinction between what is required by the law of
nature [which he argued was the source of international law]
and what is not required by nature, but is nevertheless
honorable .... By the law of nature, no declaration is
required when one is repelling an invasion, or seeking to
punish the actual author of some crime. . . . And no more
necessary, by the law of nature, is any declaration when an
owner wishes to lay hands on his own property [that has been
wrongfully taken by another].''
Grotius argued further that it was "superfluous" for war to be "declared by both sides,"*
and explained that "A declaration of war against the sovereign of a people is considered a
declaration at the same time against not only all his subjects but aU who will join him as
allies and thereby become his accessories."' It is precisely because this formal legal action
by one State against another carried such a strong content that the Founding Fathers — ^who.
' George K. Smait, "Private Libraries in Colonial Virginia," 10 American Literature 24 (1938), cited in
A.E. DICK HOWARD. THE ROAD FROM RUNNYMEDE: MAGNA CARTA AND CONSTmmONAUSM IN
AMERICA 119(1968).
"^ HUGO GROTIUS, THE LAW OF WAR AND PEACE, Book ID, Chapter 3 at 289 (Translated by Louise R.
Loomis, 1949) (emphasis added).
*M. at291.
126
Sutement of Prof. Robert F. Turner
3 March 1994, page 9
as Jefferson put it, believed that "[i]f there be one principle more deeply rooted than any
other in the mind of every American, it is that we should have nothing to do with
conquest"'" — sought in the Constitution to encumber the process.
Similar observations were made by others even before Grotius published his
landmark treatise." Perhaps the most important of these was the Italian Alberico Gentili,
whose two volume '2 study, De Jure Belli Libri Tres, was published in 1612. In chapter
two of book two, Gentili argued that it was "unjust, detestable, and savage" not to declare
war properly when so lequired,'^ but added that "when war is undertaken for the purpose
of necessary defence, the declaration is not at all required."'^ Richard Zouche takes the
same position.'*
Another prominent authority on international law widely read by the Founding
Fathers was Emmerich de Vattel, who published Le Droit des Gens ("The Law of
Nations") in 1758. Vattel, who was frequently cited by early Americans like Thomas
Jefferson, James Madison, and John Marshall, wrote that: "He who is attacked and only
wages defensive war, needs not to make any hostile declaration, — the state of warfare
being sufficiently ascertained by the enemy's declaraticxi "•*
Burlamaqui's two volume study. The Principles of Natural and Political Law, was
also popular among educated Americans during the years leading up to the constitutional
'0 Leaer to William Short, in 5 THE WRITINGS OF THOMAS JEFFERSON 364 (P. Ford cd.).
1 1 Nearly a century before Grotius, the Spanard Franciscus de Victoria argued that "the prince ... has
authority to declare war, and no one else," but concluded that "Any one ... can accept and wage a defensive
war [emphasis added]." The power of self-defense was by nature a right and duty of the State. Thus, "if
within one and the same realm one city should take up arms against another, or one of the dukes against
another duke, and the king should neglect or should lack courage to exact redress for the wrongs that have
been done, the aggrieved city or duke may not only resort to self-defense, but may also commence war and
take measures against the enemy and even kill the wrongdoers, there being no other adequate means of self-
defense." FRANasa DE VICTORIA, DE INDIS ET DE JURE BELLI RELECTIONES 167-69 (Carnegie
Institution, 1917).
12 Tiie treatise was largely composed of three previously published wotks.
15 2 ALBERICO GENTIU. DE JURE BELU LIBRI TRES 140 (1612, John C. Rolfe, Trans., 1933).
'^ Id. at 136 (emphasis added).
15 2 RICHARD ZOUCHE, AN EXPOSITION OF FECIAL LAW AND PROCEDURE, OR OF LAW BETWEEN
NATIONS, AND QUESTIONS CONCERNING THE SAME 171 (Ji. Brieriy, Trans., 1911).
1* E. VATTEL, THE LAW OF NATIONS 316 (J. Chitty. ed., 1867) (emphasis added). See also id., at 319
Cdefensive war requires no declaration (emphasis added]")
127
Statement of Prof. Robert P. Tarncr
3 March 1994, page 10
convention; and he, too, writes about the "declaration of war" — concluding that "this
declaration takes place only in offensive wars . . . [emphasis in original]."''^
One of the earliest American authorities on international law was Chancellor James
Kent, who's Commentary on International Law revievfed the practice of States (noting that
formally declaring war had "fallen into disuse"), and noted that "The jurists are . . . divided
in opinion, in respect to the necessity or justice of some previous declaration to the enemy
in the case of offensive war."**
When Madison and Gerry moved in July 1789 to change the draft constitutional text
from giving Congress the power "to make war" to the lesser power "to declare war," it was
emphasized that this was to leave the President free to defend the nation against "sudden
attack" and also to clarify that the conduct of hostilities was exclusively an Executive
responsibility." Madison noted that, during the debate, "Mr. Sharman thought .... [t]he
Executive sh[ouI]d be able to repel and not to commence war." ^oxhus, it seems clear that
the Founding Fathers recognized that declarations of war were not necessary when force
was used by the Commander in Chief to defend the nation against fweign aggression.
An interesting debate occurred in December 1801, when President Jefferson, in his
first annual message to Congress, essentiaUy misrepresented the facts in an armed naval
conflict with the Barbary Pirates. He told Congress that an American naval vessel,
"[ujnauthorized by the Constitution, without the sanction of Congress, to go beyond the
line of defence, the [enemy] vessel being disabled from committing further hostilities, was
liberated with its crew."2i Actually, thanks to the publication of documents published by
the Office of Naval Records and Library by authority of the Congress, we now know that
Captain Richard Dale had been instructed by the Acting Secretary of the Navy — by
'' J J. BURLAMAQUl, THE PRINCIPLES OF NATURAL AND POLITICAL LAW 187 (7th ed., T. Nugent
Trans., 1830).
18 KENT'S COMMENTARY ON INTERNATIC^IAL LAW 188 (J.T. Abdy. ed. 1866XOTphasis added).
'' 4 THE WRITINGS OF JAMES MADISON 227-28 (Gaillard Hunt, ed. 1904).
20 W. 227.
21 3 THE WRITINGS OF THOMAS JEFFERSON 329 (Mem. ed. 1904).
128
Sutement of Prof. Robert F. Turaer
3 March 1994, page 11
direction of the President — to sail his squadron to the Mediterranean; and, if upon arriving
he learned that the Baibary Pirates had "declared war" on the United States, he was directed
to "distribute your force in such manner, as your judgment shall direct, so as best to protect
our commerce & chasdse their insolence — by sinking, burning or destroying their ships &
Vessels wherever you shall find them "^ In reality, the decision to "liberate" the
vessel in question was made by Captain Dale — ^who had dispatched one Lieutenant Andrew
Stenet with the schooner Enterprise to proceed to the island of Malta to secure water for the
fleet Sterret was instructed not to be delayed by taking enemy ships as prize while en
route to Malta, since "you have not much water on board '* His orders provided that if
he engaged an enemy vessel "on your Passage to Malta you will heave all his Guns Over
board Cut away his Masts, & leave him In a situation, that he can Just make out to get into
some Port, but if coming back you will bring her widi you if you think you can doe it with
safety."23 The so-called "defensive" aspect of the operation was dictated by operational
convenience, not constitutional principle — and it is quite possible that Jefferson
intentionally overstated the case in order to motivate Congress to quickly unite behind his
decision to use force.^^
Whatever Jefferson's motives, his contention that the Commander in Chief lacked
power to use "offensive" force in response to a foreign attack was sharply challenged.
Alexander Hamilton, for example, wrote on 17 December
[The Constitution provides that] "[t]he Congress shall have
power to declare War; the plain meaning of which is that, it is
the peculiar and exclusive province of Congress, when the
nation is at peace, to change that state into a state of war;
whether from calculations of policy or from provocations or
injuries received; in other words, it belongs to Congress only,
to go to War. But when a foreign nation declares, or openly
22 1 NAVAL IXXrUMENTS RELATED TO THE UNTTED STATES WAR WITH THE BARBARY POWERS 465
(Claude A. Swanson. ed. 1939).
23 W. at 534-35.
24 It is worth noting that Jefferson had favored trying to "effect a peace" with the Baibary Pirates "through
the medium of war" as early as 1786. but Washington and Adams has prefened to pay ransom for Amencan
hostages. Id. at 10.
129
SUtemcDt of Prof. Robert F. Turner
3 March 1994, page 12
and avowedly makes war upon the United States, they are then
by the very fact, already at war, and any declaration on the
part of Congress is nugatory; it is at least unnecessary.^^
A 2,000-page analysis of the Constitution prepared by the Congressional Research Service
of the Library of Congress concluded that "Congress apparently accept[ed] Hamilton's
vicw"26 of this dispute.
Hamilton's view also clearly carried the day with the Supreme Coun when
President Lincoln's failure to get formal legislative sanction to attack secessionist states
during the Civil War was challenged by the owner of ships seized as prizes of war. The
Court majority concluded:
By the Constitution, Congress alone has the power to declare a
national or foreign war. . . . [The President] has no power to
initiate or declare a war either against a foreign nation or a
domestic state. . . . [But] if a war be made by invasion of a
foreign nation, the President is not only authorized but bound
to resist force by force. He does not initiate the war, but is
bound to accept the challenge without waiting for any special
legislative authority. And ... it is none the less a war,
although the declaration of it be "unilateral."^^
Picking up on this theme, writing in 1871, William Whiting argued in War Powers Under
the Constitution of the United States that:
Congress has the sole power, under the constitution, to make
[a] declaration (of war], and to sanction or authorize the
commencement of offensive war. . . . But this is quite a
different case from a defensive . . . war. . . . [The
Constitution,] which gives the legislature authority to declare
war, whenever war is initiated by the United States, also make
it the duty of the President, as commander-in-chief, to engage
promptly and effectual in war; or, in other words, to make the
United States a belligerent nation, without declaration of war,
25 25 THE PAPERS OF ALEXANDER HANDLTON 455-56 (R Syreo and Jacob E. Cooke, eds., 1969).
26 THE CONSTTTUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 327
(Sen. Doc. 92-82. 92d Cong.. 2d Sess., 1973).
27 The Prize Cases. 67 U.S. (2 Black) 635, 668 (1863).
130
Statement of Prof. Robert F. Turner
3 March 1994, page 13
or any other act of Congress whenever he is legally called
upon to . . . repel invasion.28
While a Professor at Yale Law School and prior to being named Chief Justice of the
United States, William Howard Taft told students at Cornell University: "It is only in the
case of a war of our aggression against a foreign country that the power of Congress must
be affirmatively asserted to csublish its legal existencc."29 A more modem study, by
Professor Edward Keynes, asserts:
Unlike the eighteenth-century British Constitution,
which vested prerogative in the Crown to initiate war and
conclude peace, the Framers conferred only defensive powers
on the President. . . . [T]he Framers deliberately divided the
national government's war and defense powers between
Congress and the President. Their division of the
congressional war powers from the presidential office of
commander in chief rests on a fundamental distinction between
offensive and defensive war and hostilities. Only Congress
can change the nation's condition from one of peace to war,
but the President, as civilian commander in chief, can repel
sudden attacks on U.S. territory, the nation's armed forces,
and its public ships at sea. The President can also employ the
armed forces to protect citizens' lives and property.^"
It is often lamented that the power of Congress to declare war has appeared to
vanish in the post- World War II era, and toon than one scholar attributes this development
to Executive usurpation. The power has been largely vitiated; but the cause is not
nefarious, power-hungry, presidents, but critically important changes in international
law— characterized above all by the U.S. ratification of the U J^. Charter. The kind of
"offensive" or "aggressive" war with which formal "declarations of war" have always been
associated has been declared illegal; and it is worth noting that no State has issued a formal
"declaration of war" in more than four decades.
28 WnilAMWHrriNG, WAR POWERS UNDER THE a)NSTnVnON OF THE UNrreO STATES 38-40(1871).
» Quoted in ROBERT F. TURNER. THE WAR POWERS RESOUmO*: ITS IMPLEMENTATION IN THEORY
AND PRACTICE 18(1983). _ , ,.
30 EDWARD KEYNES, UNDECLARED WAR; TWDJOfT ZONE OF CX^lSITTUnONAL POWER 3, 34.
131
Statement of Prof. Robert F. Turner
3 March 1994, page 14
In a not dissimilar way, the constitutional power of Congress "go grant Letters of
Marque and Reprisal" has also over the years been undermined by progress in international
law. While the United States was one of only a handful of Sutes not to sign the 1856
Declaration of Paris outlawing privateering, in the years thereafter it conducted itself in
such a manner as to contribute to the establishment of a clear state practice,^^ "accepted as
law" (opinio juris'p^ and by so doing became bound by customary international law.
Is there still a valid use for this once-important legislative power to "declare war"?
The only clear case from a legal perspective^' would be in the event the President decided
to launch a war over a political, economic, or similar grievance in violation of Article 2(4)
of the Charter. One can argue that the 1989 intervention in Panama was such a case —
which makes the congressional support for that operation all the more ironic. But the entire
concept of a "declaration of war" has in both theory and practice been a casualty of some
very pxjsitive advances in international law that have outlawed the kinds of conduct with
which such instruments were associated.
One of the foremost American legal scholars of this century on these issues was
John Bassett Moore, who in connection with the Kellogg- Briand Pact of 1928 — perhaps
the first serious effort to outlaw "war" by treaty — wrote that it was wrong to try to
distinguish between "aggressive wars" and "defensive wars," because using force in self-
defense was not "war." He argued: "Self-defense by a nation is not war. When once you
have outlawed war, do not use the word war any more."^
3' nL.OPPENHEIM, INTERNATTONALLAW: A TREATISE 250-51 (3d cA. 1921).
32 STATUTE OF THE INTERNATIONAL COURT OF JUSTICE. Ait 38( 1 )(b).
3' I should perhaps emphasize that I am not discussing the poUtical utility of having Congress pass a
concurrent or joint resolution in suppon of a presidential use of force as a means of enhancing detenence
and assuring the American public that the action is a considered and «ise one — an approach thai I strongly
endorse. Congress will ultimately have a "veto" over prolonged and major use-of -force situations through
its appropriations power, and there are considerable poUtica] and prudential pr^sures on a wise executive to
make Congress a fonnal partner in such endeavors to the extent time and operational security permit.
^ Quoted in John Norton Moore, Development of the Internaaonal Law qfCor^ict Management, in JOHN
NORTON MOORE. FREDERICK S. TIPSON, & ROBERT F. TURNER. NATIONAL SECURTTY LAW 47, 70
(1990).
132
SUIemeDt of Prof. Robert F. Turner
3 March 1994, page 15
Some scholars recognize that formal "declarations of war" are anachronistic, but
contend nevertheless that the constitutional meaning of die tenn somehow differs from that
associated with international law. I disagree, and I have seen no reasoned explanation for
the alleged difference. The Founding Fathers were highly educated men for their era —
Grotius, for example, was widely read in the American colonies — and they intentionally
selected a "term of art" drawn from international law. Professor Louis Henkin, usually
viewed as a strong advocate of congressional foreign affairs powers, recently referred to
"hostilities that constitute war within the meaning of the Constitution — war as understood
in intemational law — ,"3^ and this would seem to be the most reasonable definition.
Even former Senator Thomas Eagleton — certainly amcmg the strongest advocates of
legislative war powers^* — has acknowledged that the Founding Fathers "drew a crucial
distinction between offensive and defensive hostilities"'^; and the underlying policy
considerations which led them to make it difficult for the new nation to engage in
"conquest" hardly apply to efforts to enhance world peace through collective defensive
operations authorized by the United Nations.
Other Powers of Congress
Lest I be misunderstood, Mr. Chairman, it is not my contention that the "war
powers" of Congress are limited exclusively to ratifying a presidential decision to launch an
aggressive war against a foreign State. That, I believe, is the essential content of the power
to "declare war." But Congress has a variety of other powers dealing with military matters
that are also important and that go beyond the now arguably archaic power to authorize the
President to take the nation fixjm peace to war by launching an aggressive attack upon a
35 Louis Henkin, Lecture: Congress, the President and the United Nations, 3(1) PACE Yi. OF INT'L L. 1
at 8 (1991).
36 Senator Eagleum voted against the 1973 War Powers Resolution because it did not, in his view, go far
enough in limiting the Executive.
3' Quoted in ROBERT F. •mRNER. THE WAR POWERS RESOLUTK»4: ITS IMPLEMENTATION IN THEORY
AND PRACTICE 18 (1983).
133
Sutemnit of Prof. Robert F. Turner
3 March 1994, page U
foreign State that may have caused us offense of some political, economic, or similar
nature. Many of these have to do with resource allocation, such as the powers to raise and
support Annies and to provide and maintain a Navy. Q>ngress may legitimately use these
powers to deny the President any military force to "command," but it may not
consdtudonally abuse these powers for the purpose of controlling the discretion vested by
the Constitution in the Commander in Chief. As the U.S. Court of Claims said in Swaim
V. United States:
Congress may increase the Army, or reduce the Army, or
abolish it altogether; but so long as we have a military force
Congress can not take away from the President the supreme
command. . . . Congress can not in the disguise of "rules for
the government" of the Army impair the authority of the
President as commander in chief.^^
Chief Justice Chase, for the Supreme Court, noted that Congress could not use its "war"
related powers to "interfere . . . with the command of the forces and the conduct of
canyaigns,"" powers which belonged exclusively to the Commander in Chief.
Congress has control of the nation's purse strings as well, through the prohibition
in Article I, Section 9, against drawing money from the Treasury "but in Consequence of
Appropriations made by Law . . . ." A discussion of the power of the purse vis-d-vis the
conimander-in-chief power is beyond die scope of this testimony; but I would note that it
does not empower Congress to seize control of the President's independent constitutional
authority by mandating specific troop deployments or dictating the actual conduct of
hostilities. Congress once made a claim that this was an unreviewable plenary power
unconstrained by the other provisions of the Constitution, but that argument was soundly
rejected by the Supreme Court in the Lovetl^ case.
38 28 Cl CL 173 at 221, cffd 165 U.S. 553 (1897).
39 Ex pane MilUgan. 71 U.S. (4 Wall.) 2. 139 (1866).
^5 Vniud States v. Lovett. 328 U.S. 303 (1946).
134
SUtemeat of Prof. Robert F. Turner
3 March 1994, page 17
The Modern Era —
Learning the Wrong "Lessons" from Vietnam
There is widespread agreement among scholars and historians that, from the first
tenn of the administration of President Washington, the President has played the role of
"senior partner" in the management of the nation's foreign intercourse. To be sure, many
writers — and this is especially true of some of the more recent works — suggest that this
was not the "original intent" of the Framcrs but simply a consequence of both functional
advantages of the Executive in terms of being able to act expeditiously, to keep secrets,
etc.; and it is also often attributed to the especially high esteem in which virtually all
Americans held President Washington. Whatever the explanation, it is clear that American
presidents have been the "senior partners" in foreign policy making until our own lifetimes.
As the Viemam war became less and less popular with the American people, and
being identified with the conflict became a major political liability to legislators who aspired
to keep their jobs, it became popular to suggest that Congress had been "cut out of the
loop" by "Imperial" presidents who had begun and carried out the unpopular conflict in
Indochina against the will of Congress. The 1973 War Powers Resolution was but the tip
of the iceberg of new laws enacted to tie the hands of future presidents and "prevent future
Viemams." In the process, more than one observer looked back at the constitutional text
and proclaimed that Congress, not the President, was given most of the textual grants of
powers related to foreign and national security affairs. Few challenged this assessment,
and Congress set about "restoring the balance of power," all the while vowing "never
again" would an American president be allowed to usurp the constitutional powers of
Congress.
Very briefly, several things can be said about this. First of all, the War Powers
Resolution and much of the surrounding debate was a fraud — a very successful effort to
conceal from American voters the fact that Congress had been very much a full partner in
committing the United States to combat in Indochina. Indeed, it would be difficult to
135
StatcmcDt of Pror. Robert F. Turaer
3 March 1994, page IS
identify a major U.S. foreign policy initiative that involved a greater congressional role;
certainly the Monroe Doctrine and the Truman Doctrine would not come close, since in
both instances Congress first learned of the nation's new foreign policies when the
President announced them to the world during public jdnt sessions of Congress.
I addressed this issue in lengthy testimony five years ago before the Foreign Affairs
Committee, so I shall not dwell on the point here other than to point out that the House
enacted a joint resolution by unanimous vote and the Senate by a vote of 88-2 that clearly
authorized the President to use military force to assist the governments of South Viemam
and Cambodia; and such "specific statutory authorization" is expressly recognized by
Section 2(c) of the War Powers Resolution as a lawful authorization for the introduction of
American forces into hostilities. Thus, not only was the War Powers Resolution
unwarranted by what occurred in Indochina; but, had it been in effect in 1964, it would not
have prevented the conflict*'
Indeed, when one reviews the record of congressional action on Vietnam it
becomes apparent not only that Congress "snatched defeat fix)m the jaws of victory" —
condemning in the process millions of people to death and tens of millions to Stalinist
tyranny*^ — but also that noost of the major arguments used by congressional critics of the
war have been disproven by subsequent history. For example:
• A major contention was that the State Department was lying when it characterized
the conflict as "Aggression from the North," and members time and again asserted
that the "National Liberation Front of South Vietnam" was independent of Hanoi's
control. In the years following the communist victory. North Viemamese Defense
41 For mrae detail on my views on this subject, see ROBERT F. TURNER. REPEALING THE WAR POWERS
RESOLUTION: RESTORING THE RULE OF LAW IN U.S. FOREIGN POUCY (1991), which is largely based
upon testinHiny I gave to the House Fweign Affairs and Armed Services Commiaees and the Senate
Fcxeign Relations Committee between 1988 and 1990.
42 The respected human rights organization Freedom House, for example, has routinely ranked the
communist Socialist Republic of Vietnam as among the wwld's dozen greatest human rights violators.
136
Statement of Prof. Robert F. Taraer
3 March 1994, page 19
Minister General Vo Nguyen Gii^), General Vo Bam, and several other key Hanoi
leaders bragged publicly that the war in the South had been initiated by Hanoi
pursuant to a May 1959 plenary meeting of the Vietnam Workers [Communist]
Party.
• Other common arguments were that the war had begun because the U.S. violated
the 1954 Geneva Agreements by blocking elections scheduled for July 1956 and
that in August 1964 LBJ had lied to Congress about the "alleged" Nordi Vietnamese
attacks on U.S. ships in the Gulf of Tonkin. The Pentagon Papers soundly refute
both charges, and a scholarly smdy by the Office of Naval History based upon
classified records shares the conclusion of the Pentagon Papers that the attacks did,
in fact, occur essentially as reported to the President and announced to Congress
and the public. Further, Hanoi today celebrates the date of the 2 August attack as
their version of "navy day."
• Allegations of widespread human rights violations by the Government of South
Viemam — such as keeping dissidents in "tiger cages" — ^have also been disprovcn;
and the subsequent deaths of perh^s two million Cambodians and hundreds of
thousands of Viemamese emphatically undercut the assurances from congressional
leaders that there would be no "bloodbath" if we simply pulled the plug on aid to
South VietnanL
But I am digressing. Let me turn to the issue of presidential powers under the
Constitution.
137
SUtement of Prof. Robert F. Turner
3 March 1994, page 20
Relevant Presidential Powers
The Forgotten "Executive Power" Clause
I submit that the Founding Fathers did not intend to issue, in the words of
Professor Edwin Corwin, "an invitation to struggle" to the political branches of
government "for the privilege of directing" U.S. foreign policy. The separation of powers
is — ^with some key "gray areas" — ^relatively clear if you understand the words used as they
were understood by educated Americans in 1787. And the key clause, often totally
overlooked in contemporary efforts to explain the separation of foreign affairs powers, is
Article n. Section 1, which provides that "The executive Power shall be vested in a
President of the United States of America."
Note that it does not say "All [executive] Powers herein granted shall be vested" in
the President. That is the construction used in Article I, Section 1, establishing the
constitutional powers of Congress, which also explains why it was necessary to spell out a
detailed list of congressional powers in the first article without including a really
conq)arable list in Article IL
The key to the constitutional separation of powers "code" is found in the word
"executive" in the first section of Article n. The Founding Fathers were familiar with the
writings of John Locke, Montesquieu, William Blackstone, and other writers about
separation of powers of the era — all of whom placed the control of foreign intercourse in
the hands of the Executive. They used different terms — Locke called it the "federative"
power, but argued that it involved matters which could not effectively be regulated by
legislative bodies. Heexplained:
[T]he management of the security and interest of the publick
without, .... though ... in the well or ill management of it
be of great moment to the commonwealth, yet it is much less
capable to be directed by antecedent, standing, positive Laws,
that [by] the Executive; and so must necessarily be left to the
138
SUtcment of Prof. Robert F. Turner
3 March 1994. page 21
Prudence and Wisdom of those whose hands it is in, to be
managed for the publick good/3
Montesquieu divided the powers of the executive into "the executive in respect to
things dependent on the law of nations; and the executive in regard to matters that depend
on the civil law."** Blackstone — who was grcady admired in the American colonies and
whose Commentaries sold extremely well in America in die years before the Philadelphia
ccHivention — argued that "With regard to foreign concerns, the king is the delegate or
representative of his people. . . . What is done by the royal autiiority, wiUi regard to
foreign powers, is the act of the whole nation . . . "*^
Tunc does not permit a full discussion of this issue, but it is worth observing that as
early as 1789 Congressman James Madison argued — and carried the day vdth the
argument — ^that the executive power clause gave the President all powers by their nature
"executive." save for any exceptions granted to Congress or to the Senate — which as
exceptions were to be "construed strictiy."^
Jefferson followed up in April 1790 with the observation — after also referring to
the language of Article II. Section 1 — diat "[t]he transaction of business with foreign
nations is Executive altogether. It belongs, then, to the head of that department, except as
to such portions of it as are specially submitted to the Senate. Exceptions are to be
construed strictiy.*' President Washington and John Jay concurred in this view. ** as did
Jefferson's rival Alexander Hamilton, who wrote in 1793:
*3jOHN LOCKE. SECOND TREATIES ON CIVIL GOVERNMENT ( 147. excerpud in Robert F. Turner. The
Constitutional Framework for the Division of National Security Powers Between Congress, the President.
and the Courts, in JOHN NORTON MOORE, FREDERICK S. TIPSON. A ROBERT F. TURNER. NATIONAL
SECURITY LAW 749. 750 (1990).
** Robert F Turner The Constitutional Framework for the Division of National Security Powers Between
Congress, the President, and the Courts, in JOHN NORTON MOORE. FREDERICK S. TIPSON. & ROBERT F.
TURNER, NATIONAL SECURITY LAW 749, 752 (1990).
*5 Id. at 755.
** Id. at 759.
*' Id. at 775.
** Id. at 776.
139
SUtement of Prof. Rokert F. Tnraer
3 March 1994, page U
It deserves to be remarked, that as the participation of
the Senate in the making of Treaties and the power of the
Legislature to declare war are exceptions out of the general
"Executive Power" vested in the President, they are to be
construed strictly — and ought to be extended no further than is
essential to their execution.
While therefore the Legislature can alone declare war,
can alone actually transfer the nation from a state of Peace to a
state of War — it belongs to the ^'Executive Power" to do
whatever else the laws of Nations cooperating with the
Treaties of the Country enjoin, in the intercourse of the
U[nited] States with foreign Powers. *^
Another Jefferson rival. Federalist John Marshall, used precisely the same
reasoning to argue in 1 800 while a member of the House of Representatives that President
Adams was empowered as the "Executive" authority to "execute" an extradition provision
of the Jay Treaty with Great Britain. He reasoned:
The President is the sole organ of the nation in its external
relations, and its sole representative with foreign nations. Of
consequence, the demand of a foreign nation can only be made
on him. He possesses the whole Executive power. He holds
and directs the force of the nation. Of consequence, any act to
be performed by the force of the nation is to be performed
through him.^°
Jefferson's close friend. Representative Albert Gallatin, was scheduled to make the
closing Republican presentation in this major debate that had already consumed mOTC than a
month of the House's time. As Marshall concluded what has been widely regarded as a
brilliant argument, Gallatin turned to his allies, tossed his own prepared text on the table,
said words to the effect of "You answer him, as for me I find his arguments
unanswerable," and sat down. Even Jefferson subsequently grudgingly acknowledged the
brilliance of Marshall's presentation.
I could go on to present other exanqjles — noting, for example, that during the early
period of our history, when men who had written and signed the Constitution in
49 Id. at 762.
50 10 ANNALS OF CONG. 613-14 (1800).
140
SUtement of Prof. Robert F. Turacr
3 March 1994. page 23
Philadelphia or had taken pan in the state ratification conventions served in the Congress, a
uniform practice was established of appropriating all funds for foreign affairs as a
contingent account without a single condition or restriction placed on the President.^ ^
Indeed, Congress provided by law that the President didn't even have to disclose to
Congress how such funds were spent, and could instead account for the sums expended on
matters which in his exclusive determination ought not be made public.^^
The case is clear. The reason the President controlled American foreign relations
throughout our first 180 years was not a result of some fluke caused by excessive
admiration for George Washington — the Constitution was designed that way. As
Professor Quincy Wright observed in 1922: "when the constitutional convention gave
'executive power* to the President, the foreign relations power was die essential element of
the grant "'^ Similarly, Professor Henkin has observed that "[t]he executive power .
. . was not defined because it was well understood by the Framers raised on Locke,
Montesquieu and Blackstone."**
The key to the separation of foreign affairs powers is to understand the intentions of
the Founding Fathers in vesting the nation's "executive" power in the President Why they
chose to do so is also clear. Briefly summarized, they understood that legislative bodies
lacked the institutional competence to conduct foreign affairs effectively. Foreign affairs
required for its effective execution such qualities as unity of design, speed and dispatch,
and secrecy — none of which were characteristics of legislative bodies.
Not only had they learned this lesson from the theories of Locke and other writers,
but they had first-hand experience from watching the Continental Congress attempt to
manage the Revolutionary War. The almost universally recognized shortcomings of this
51 11 THE WRTTINGS OF THOMAS JEFFERSON 5-10 (Mem. ed. 1904).
^^ "[T]he President shall account specifically for all such expenditures of the said money as in his judgment
may be made pubUc. and also for the amount of such expenditures as he may think it advisable not to
specL'y." 1 Stat. 129 (1790).
^ QUINCY WRIGHT, THE CCWTRCH- OF AMERICAN PORQGN RELATICWS 147 (1922).
54 Louis Henkin. Foreign Affairs and the Constinuion, 66(2) FOREIGN AFFAIRS 43 (Winter 1987-88).
141
SutemeDt of Prof. Robert F. Tniner
3 March 1994, page U
effort prompted John Jay, in Federalist No. 64, to argue that the Constitution "would have
been inexcusably defective" if no attention had been paid to the "want of secrecy and
dispatch" that America "heretofore suffered" under the previous system. Hamilton echoed
this theme of institutional competency, imer alia, in Federalist No 70.
Jay noted in Federalist No. 64 that important foreign intelligence sources would not
provide information to the United States if they thought it would be shared with the Senate,
much less the more numerous House of Representatives; and he explained that, under the
new Constitution, the President would be left "free to manage the business of intelligence
as prudence might suggest."
The Commander in Chief Power
Article n, Section 2, of the Constitution begins by providing: "The President shall
be Commander in Chief of the Army and Navy of the United States, and of the Militia of
the several States, when called into the actual Service of the United States . . . ." This
power gives the President exclusive power of whatever military force Congress sees fit to
"raise and support" or "provide and maintain." Constrained only by the other provisions of
the Constitution, the President decides where to deploy the forces at his command and what
strategy to follow when he is called upon to send American forces into combat Other than
denying the President any Army to "command," the Congress lacks constitutional authority
to direct or prohibit the operational management of military forces. The Founding Fathers
did not expect many legislators to have expertise about such matters, and they entrusted
these decisions to the President — who was to have the advice and counsel of both
uniformed and civilian military experts — as pan of his responsibilities as Commander in
Chief.
Prior to Viemam, it was extremely uncommon for members of Congress to attempt
to interfere in this area. The few noteworthy exceptions were generally dealt with quickly
142
SUtement of Prof. Robert F. Turner
3 March 1994, page 25
by more experienced colleagues, and the proposals were often withdrawn before a vote
could be taken.
For example, consider this excerpt from the Congressional Record of a Senate
debate that occurred on December 27, 1922, shortly after the close of World War I,
between Senator William Borah of Idaho and Senator James Reed of Missouri. Senator
Borah — an isolationist and champion of Senate rights^^ — served as a member of the
Committee on Foreign Relations for nearly three decades and was its chairman for six
years. He was, in addition, a highly respected constitutional lawyer. His views on the
power of Congress to control the President's power as Conomander in Chief are therefore
worthy of careful attention. At issue was whether U.S. military forces should remain in
Europe following the successful conclusicm of the wan
Mr. Reed of Missouri. Does the Senator think and has he not
thought for a long time that the American troops in Germany ought
to be brought home?
Mr. Borah. I do.
Mr. Reed of MissourL So do I ... . Would it not be easier to bring the
troops home than it would be to have the proposed [Washington
disarmament] conference?
Mr. Borah. You can not bring them home, nor can L
Mr. Reed of MissourL We could make the President do it
Mr. Borah. We could not make the President do it. He is
Commander in Chief of the Army and Navy of the United States, and
if in the discharge of bis duty he wants to assign them there, I do not
know of any power that we can exert to compel him to bring them
home. We may refuse to create an Army, but when it is created he is
the commander.
Mr. Reed of Missouri. I wish to change my statement We can not
make him bring them home . . . , but I think if there were a
resolution passed asking the President to bring the troops home,
^^ Other than Senator Henry Cabot Lodge, Borah was probably the leading figure in persuading the Senate
to deny the President consent to ratify the Versailles treaty establishing the League of Nations.
143
SUtement of Prof. Robert F. Taracr
3 March 1994, page M
where they belong, the President would recognize that request from
Congress.*^
Senator Borah was a leader in the movement within the United States to "oudaw
war," and he introduced a resolution toward that end as early as Felmiary 1924. But, like
other members of the movement, Borah "considered that to act in defence was not to make
war."5'
Even earlier, during the Civil War, an interesting debate occurred between Senator
Charies Sumner of Massachusetts and Senator OrviUe Browning of Illinois. In supporting
legislation that he had introduced. Senator Sumner asserted: "There is not one of the rights
of war which Congress may not invoke. There is not a single weapon in its teirible arsenal
which Congress may not grasp."58 Vigorous exception was taken to this remark by
Senator Brovming who replied:
That this is true when spoke of the Government I now will admit,
and always have admitted, but that it is true when spoken of
Congress I utterly deny. ''There is not one of the rights of war
which" the Government "ruAy not invoke.** There are many which
Congress dare not touch without becoming a usurper.^ ^
In the exchange which followed. Senator Browning provided a lengthy discourse on the separation
of the "war powers" of the Congress and the President:
It is not true that Congress may decide upon the measures
demanded by military necessities and order them to be
enforced. . . .
These necessities can be determined only by the military
commander, and to him the Constitution has intrusted the
prerogative of judging of them. When the Constitution made
the President "Commander-in-Chief of the Army and Navy of
the United States," it clothed him with all the incidental
powers necessary to a full, faithful, and efficient performance
of the duties of that high office; and to decide what are
military necessities, and to devise and execute the requisite
measures to meet them, is one of these incidents. It is not a
56 64 Cong. Rec. 993 (1922).
57 IAN BROWNUE, imBlNATTONAL LAW AND THE USE OF FORCE BY STATES 82 ( 1963).
58 Cong. Globe, 37th Cong.. 2d Sess. 2918 (1862).
5' Id. (emphasis in original).
144
Statement of Prof. Robert F. Turner
3 March 1994, page 27
legislative, but an executive function, and Congress has
nothing to do with it. Congress can "raise and support," but
cannot command armies. That duty the Constitution has
devolved upon the President. It has made him Commander-in-
Chief, and therefore Congress cannot be. Nor can Congress
control him in the command of the Army, for, if it can, then he
is not Commander-in-Chief, and the assertion of the
Constitution to that effect is a falsehood. And whenever
Congress assumes the control of the Army in the field, it
usurps the powers of a coordinate department of the
Government, destroys the checks and balances provided for
the safety of the people, and subverts the Constitution.
Legislative encroachment upon the prerogatives of the other
departments thus boldly once begun, where will it end? It will
go on increasing, in strength, and pushing its conquests, till it
subordinates the Constitution itself to its will, and becomes as
omnipotent as the British Parliament. . . .
The honorable Senator recognizes no such barriers, no
such separation of powers, but claims that all executive
powers which the President may exercise in the prosecution of
the war are held by him in subordination to the will of
Congress, subject to its control and direction, and all of which
Congress may exercise concurrently with the President if it so
chooses. . . .
There are certain acts to be performed which cannot be
perfected without the assent of both the executive and
legislative departments, but the part to be performed by each is
clearly and distinctly defined, and neither can trench upon the
province of the other. They are separate and distinct acts, to be
performed by each department for itself, by its separate action,
and not by the conjoint action of both. The part to be
performed by the President must be performed by him alone.
Congress can neither do nor control the doing of it. If the act
is legislative, it must be done by Congress; if executive, by
the President, and the President alone. . . .
He u as supreme in his sphere as the legislative department
is in its sphere; and in the performance of the duties with which the
Constitution has charged him he cannot, without an abrogation of
his authority, submit to be controlled by either Congress or the
people, they being as completely subject to the Constitution and as
much bound to yield to its authority as he u —
The exercise of the law-making power by the President
would be ranked usurpation. It is as flagrant usurpation, and
far more dangerous to the integrity of the Constitution and the
Government, for Congress to assume executive power. ^^
While I will be happy to discuss the content of the Commander in Chief clause at
greater length, I have the sense that most members of Congress today recognize that this is
*0 Id. at 2919-20.
145
SUUment of Prof. Robert F. Taracr
3 March 1994, page 28
8 broad, exclusive, and important source of presidential authority. The
misunderstanding — or, more neutndly put, the disagreement— occurs with req)ect to the
declaration of war clause and the President's more general claim to control foreign policy —
both of which I have dealt with above.
The Duty to Faithfully Execute the U.N. Charter
As Part of the "Supreme Law of the Land**
The President's authority is not limited to his grants of "executive" and
"Commander in Chief authority. In looking to the constitutional text for authority for the
President to implement a peacekeeping operation approved by the United Nations, it is
important not to overlook the requirement in Article II, Section 3, of the Constitution that
the President "shall take Care that the Laws be faithfully executed " In Article VI. the
Constitution provides further that "all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land "
Professor Henkin has recently written:
The [United Nations] Charter is a treaty binding on the
United States under international law. Under the United States
Constitution, the Charter, as a treaty of the United States, is
the law of the land. The President has the duty to take care
that laws be faithfully carried out. Duty to act bring with it
authority (power) to do so.^'
The Supreme Court has observed that "the execution of a contract between nations
is to be demanded from, and, in the general, siq>erintended by, the executive of each nation
. . . "^ While legislation may well be necessary before the President can act to carry out
" Louis Henkin, Lecture: Congress, the President and the United Nations, 3(1) PACE Y.B. INT'L L. 1, 18
(1991).
^2 United Slates v. Schooner Peggy, S US (1 Cranch) 103. 109 (1801). See also Terlinden v. Ames, 184
U.S. 270 (1902), in which Chief Justice Fuller held that the power to suneoder a fugitive pursuant to the
18S2 treaty with the Kingdom of Pnissia "is clearly included within the treaty," and explained that the
"exercise" of this power "pertains to public policy and govemmental administration," and "is devolved on
the Executive authority of the United States." Funheimore, The decisions of the Executive Department in
matters of extradition, within its own sphere, and in accordance with the Constitution, are not open to
judicial revision " Id. ai 289. 290. In Charlton v. Kelly. 229 U.S. 447 (1913). discussing the
international obligation of the United States under a treaty with Italy, the Court said that it was
"committed" to the interpretation of a challenged provision of the treaty given by the Department of State
on behalf of the President, and concluded: "The executive departmeat having thus elected to waive any right
146
SUtemeat or Prof. Robert F. Taraer
3 March 1994, page 29
the nation's treaty commitments — as, for exanq>le, when the treaty calls for die expenditure
of funds from the treasury'^ — as Commander in Chief he does not need additional
authority from Congress to "command" whatever military forces have been "raised" or
"provided" unless his intended use infringes upon a constitutional power of Congress,
such as the power to "declare War."
It can hardly be seriously contended that deployments like that in Somalia or the
planned U.N. peacekeeping operation in Haiti would require a declaration of war, and thus
no power of Congress is infringed by such deployments. Indeed, when the U.N. Charter
was being debated in the Senate, Senator Warren Austin inserted into the Record a legal
memorandum prepared by several of the nation's foremost legal scholars — including Philip
C. Jessup and Quincy Wright These experts assured the legislators that:
[T]here can be no doubt of the propriety of the President's use
of his powers to carry out a commitment for participation in
international policing such as that proposed at Dumbarton
Oaks. Nor can there be doubt of his constitutional right to
utilize contingents of the armed forces for this purpose.
The Supreme Court has explicitly recognized that the
President has both the right and duty to utilize his powers as
Commander in Chief to see that the laws are faithfully
executed (In re Neagle (135 U.S. 1, 65) . . . [other citations
omitted]) and it has declared that the "laws" include rules of
general international law [citations omitted] and agreements
binding the United States [citations omitted] as well as the
Constitution, treaties, and acts of Congress.
Congress may provide for the extraterritorial use of
force in future contingencies under its powers to punish
piracies and offenses against the Law of Nations [citations
omitted] .... But even in the absence of such explicit
provision the President is responsible for seeing that the laws
are executed.^^
to free itself from the obligation .... it is the plain duty of this coun to recognize the obligation . . . ."
Id. at 475. 475. See also. Sullivan v. Kidd. 254 U.S. 433. 442 (1921).
^^ U.S. CONST. Article I, Section 9 (prohibiting the drawing of funds from the treasury without legislative
appropriation).
^ CONG. REC. 8065. 8066-67 (26 July 1945)
147
SUtement of Pror. Robert F. Taraer
3 March 1994, page 30
Much has been made by some commenutors of the fact that, in the absence of
Article 43 agreements widi the Security Council, the Security Council cannot force any
State to use its own military forces to uphold the Charter. As a factual matter, I don't
quarrel with this observation. The report to the President <rf the U.S. delegation to the San
Francisco Conference stressed that, in the absence of such agreements, "no Member of the
United Nations can be called upon to supply for the use of the Security Council forces
which are not provided for in the agreements."'^
But I don't perceive this to be a problem. The President's duty to see the nation's
treaties "faithfully executed" does not carry a limitation prohibiting die President either finxn
using his own discretion in interpreting the Charter or in deciding how to use die resources
available to him to best achieve the objectives of the treaty, any more than the President is
somehow constitutionally barred from acting in the domestic realm if Congress merely
"authorizes" him to act and does not make action mandatory. On the contrary, the case for
Executive discretion in the foreign affairs area is far stronger, not only does the President
have vast indei}endent authority to act not matched by his domestic powers, but the
Supreme Court has noted that the very nature of foreign affairs requires Executive
discretion if policy is going to be successful**
The idea that the President can only cany out his responsibilities under the Charter
if directed to do so by the Security Council — a position advanced by some highly respected
scholars'' — strikes me as being unwarranted as a matter of law and incredibly shortsighted
as a matter of policy. There are important policy undertakings established by the Charter —
" CHARTER OF THE UhflTED NATIONS. REPORT TO THE PRESIDENT ON THE RESin,TS OF THE SAN
FRANCISCO CONFERENCE BY THE CHAIRMAN OF THE UNITED STATES DELEGATION, THE SECRETARY
OF STATES. June 26. 1945 at 40 (Dep't of Stale Pub. 2349. Conf. Ser. 71).
^ See. e.g.. Untied States v. Curtiss-Wrighi Export Corp, 299 US. 304 (1936).
*' Professor Henldn has wriaen: "In my view, the President might plausibly claim that be had the duty.
therefore the autlxxity, to carry out any mandauvy. self<xecuting provisions of the Charter, a treaty of the
United Stales, as well as mandatory resolutions of the Security Council, since the Charter obligated the
United States to heed such resolutions. ... On the other hand, in my view, there is no basis for deriving
from the Charter any authority for the President to do on behalf of the United Slates what the Security
Council does not mandate, but only authorizes or recommends." Louis Henkin. Lecture: Congress, the
President and the United Nations, 3(1) PACE Y£. INT'L L. 1, 20 (1991).
148
Statement or Prof. Robert F. Turner
3 March 1994. page 31
including the commitment in Article 1(1) "to take effective collective measures for the
prevention and removal of threats to the p>eace, and for the suppression of acts of
aggression or other breaches of the peace" — and when the Senate consented to the
ratification of that treaty it became the constitutional duty of the President to see it
"faithfully executed."
There is one additional argument that perhaps should be addressed briefly. If one
rejects my conclusion that a use of military force to carry out a decision of the Security
Council does not infringe upon the power of Congress to "declare war," then it can be
argued that no treaty can provide such authority. The reasoning here is that "[t]he
Constitution provides that Congress alone, not the treaty-making power, has the power to
declare war," and since the House plays no role in consenting to the ratification of treaties
no treaty can authorize hostilities.** As one writer reccndy argued, "while the entire
Congress may delegate the power to declare war under certain circumstances, the Senate
alone cannot do so through the treaty process. The whole Congress must participate in the
delegation of an enumerated power."^ In this connection, one could also observe that the
Congress considered this issue in deciding that any Article 43 agreement would be
approved by joint resolution rather than by treaty — although, as a matter of both
international and U.S. constitutional law, an agreement approved by treaty in this situation
would clearly be fully effective.''^
Several things can be noted in response. While some provisions of the Constitution
clearly establish exclusive nmnners of conduct,^ > nothing in the wording of Article I,
" See. e.g.. CONG. R£C. 1 U97 (4 dec. 1945).
69 Matthew D. Berger, Implementing a United Nations Security Council Resolution: The President's
Power to Use Force Wuhout the Authorization of Congress, 15 HASTINGS INTX & COMP. L. REV. 83, 86
(1991).
'^ Professor Henkin concludes: "The United Nations Panicipalion Act of 1945 requires the consent of
Congress, not the Senate alone, but if the Senate gave consent to an Anide 43 agreement concluded as a
treaty, that treaty would no doubt be valid." Louis Henkin, Lecture: Congress, the President and the
United Nations. 3(1) PACE Y.B.1IfT'LL. 1, 19n.64 (1991). Under municqnl United States law, the "later
in time" doctrine would app\y and a subsequent treaty would be given effect over an inconsistent earUer
statute. (See, e.g.. Whitney v. Robertson. 124 U.S. 190 (1888).
■^1 See. e.g.. U.S. CONST. Arts. I, Sec. 7 & 9.
149
SUtement of Prof. Robert F. Tmner
3 March 1994, page 32
Section 8, prohibits alternative approaches. I am not here suggesting that the President
may unilaterally "declare war," but that such authority might arguably be conveyed by
treaty. After all. Article I, Section 8, also gives Congress the power to "regulate
Commerce with foreign Nations," and yet the United States has entered into coundess
economic and trade agreements by the treaty process. Indeed, it is difficult to identify any
foreign relations powers enumerated in Article I, Section 8, that have not been addressed
through the treaty process. Treaties prohibit piracy, establish "Offenses against the Law of
Nations," regulate postal and copyright matters — ^indeed, there are major international
treaties making "Rules concerning Captures on Land" — such as the 1949 Geneva
Convention on Prisoners of War — a legislative power found in the same clause with the
power to "declare war." The assertion that "[t]he whole Congress must participate in the
delegation of an enumerated power,"''^ is not unreasonable on its face, but it has no
support in more than two centuries of constitutional practice.
Whether authority to "declare war" can be provided by treaty is admittedly unclear.
To the extent the practice with respect to mutual security treaties may be relevant, the usual
practice has been to provide that the parties are to act "in accordance with their
constitutional processes" in responding to a breach with military force; and the Executive
branch has usually taken the position that that means getting approval from both Houses of
Congress through something like the Gulf of Tonkin Resolution. Those statements may
largely reflect prudential policy considerations rather than requirements of the Constitution,
and nothing in the text of the document would distinguish the declaration of war clause
from those which surround it in this connection. I believe a reasonable case can be made
on either side of this issue.
^ Quoted above, at text accompanying note 69.
150
Statement of Prof. Robert F. Turner
3 March 1994, page 33
The U.N. Participation Act of 1945
Mr. Chairman, one of the things you sought my views on was the United Nations
Participation Act of 1945. In connection therewith, it is worth noting that it was recognized
by both the House and the Senate in 194S when they enacted this important implementing
legislation that a use of military force under Chapter VII of the Charter by the Security
Council would not be an act of "war," but an act of "peace." It would therefore not
infringe upon the Article I, Section 8, power of Congress to take the nation from peace to
war. Indeed, so strong was this sentiment that, in early December, 1945, the Senate
overwhelmingly defeated an amendment proposed by Senator Wheeler of Montana that
would have required the President to obtain congressional approval before U.S. military
forces could be used to implement a decision of the Security Council. The final vote was
65 to 9 against the amendment'^
As explained in the language of House Report No. 1383 by the House Committee
on Foreign Affairs (and identical language appeared in the Senate Foreign Relations
Committee Report):
Preventive or enforcement action by these forces upon
the order of the Security Council would not be an act of war
but would be international action for the preservation of the
peace and for the purpose of preventing war. Consequently,
the provisions of the Charter do not affect the exclusive power
of the Congress to declare war.
The committee feels that a reservation or other
congressional action such as that referred to above would also
violate the spirit of the United States Constitution under which
the President has well-established powers and obligations to
use our armed forces without specific approval of Congress.
[Emphasis added.]
To be sure, the context of the discussion was the possible use of U.S. forces made
available to the Security Council through an agreeoient which the act envisioned would be
negotiated by the President with the Security Council — an agreement that would be subject
to the approval of the Congress by joint resolution. But surely the source of the forces
'3 CONG. REC. 11.405 (Dec. 4, 1945).
151
SUtement of Prof. Robert F. Turaer
3 March 1994, page 34
used is iirelevant to the underlying issue of whether a particular use of force falls into the
category of those international actions requiring a "declaration of war." If it is not an act of
"war" in this sense for the Security Council to order forces from various Member States
into hostilities to prevent aggression or remove a "threat to the peace," it can hardly become
such an act for individual States to join together under the leadership and with the approval
of the Security Council to use force for these same purposes.
It is perhaps worth noting that Professor Thomas M. Franck, Editor-in-Chief of the
prestigious American Journal of International Law, took the position in an op-ed article in
the New York Times in December, 1990, that "Congress has neither a constitutional
obligation nor a right to declare war before the U.S. joins in a U.N.-sponsorcd police
action in the Persian Gulf."^^ Others quarreled with his reasoning, but it was clearly
consistent both with the language of the reports of both Houses of Congress in approving
the U.N. Participation Act and with the majority view in noodem international law that the
prohibition of aggressive war in the U.N. Charter has vitiated the legal utility of
declarations of war.
It is only if one contends that the Founding Fathers intended some new and special
meaning to a term of art that was widely understood as part of the law of nations that
Professor Franck's case becomes vulnerable; and the limited records we have of the
Philadelphia Convention debates support no such conclusion. On the contrary, the clear
distinction between force used offensively (which they believed required a declaration of
war) and defensive force (which the President could use without legislative sanction) is
most logical when considered in the light of the similar distinction made in international law
concerning the need for formal declarations of war.
It is perhaps worth noting that the legislators who gave overwhelming ^proval to
the U.N. Participation Act did so with effective detenence in mind; and they understood
well the issue of institutional competency addressed by Lxx;ke and others. Like the
''*Tbomas¥mKk,DeclareWar? Congress Cm t.N.Y.TJMBS. 11 Dec. 1990aiA27.
152
Statement of Prof. Robert F. Turner
3 March 1994. page 35
Founding Fathers, they realized that Congress could not anticipate all ]x>ssible threats to the
world community by antecedent laws, and they knew that if the new peacekeeping regime
was to have any chance of success it would have to be able to act quickly. This
consideration was raised in both the House and Senate reports on the bill and figured
prominently in the debates in both houses. Senator Tom Connally, for example, who had
co-chaired the U.S. delegation at San Francisco, told his colleagues on the Foreign
Relations Committee upon his return that "the very usefulness of the Security Council is
that it is supposed to have at its disposal forces it can use immediately and quickly in
emergencies. If we have to wait to get somebody's consent, the war wiU be on, and we
will not be able to control it, in my view."^'
Charter Provisions Which Might Benefit
From Clarification or Modernization
I believe the President has adequate power under international and U.S.
constitutional law to act effectively to uphold the Charter and promote international peace;
but this does not mean that there are no changes or "clarifications" in international law that
might be appropriate to this purpose. Time won't permit me to go into great detail, but it
seems clear that since the Charter was written there has been a dramatic change in the law
of human rights — changes which affect the legality of such "humanitarian" interventions as
that currently taking place in Somalia.
While full-scale genocide was argimbly illegal even before the Charter entered into
force,^^ some less drastic but still grave human rights violations that traditional
international law would have classed as matters of "domestic jurisdiction" of States when
directed internally are now increasingly recognized to be matters of legitimate international
"^5 UNITED STATES SENATE. THE CHARTER OF THE UNITED NATIONS: HEARINGS BEFORE THE SENATE
CCMMnTEE ON FOREIGN RELATIONS 127 (79th Cong., 1st Sess.. (1945).
^^ The Nuremberg trials took this position.
153
SutencBt of Trot. Robert F. Taraer
3 Marck 1994. page M
concern. While "the application of enforcement measures under Chapter Vn" of the
Chaiter has always been exempt finom the prohibition in Anicle 2(7) of the Charter, which
prohibits U.N. intervention into "matters which are essentially within the domestic
jurisdiction of any state." a case can be made that the Charter should be amended to
recognize a legal right of humanitarian intervention outside of Cluq>ter VII when a State
engages in large-scale demicide ot other comparable human rights violations.
For example, the report to the President of the United States Delegation to the San
Francisco Conference stated, with respect to Article 2(3) of the Charter, that "[a]t San
Francisco, on the initiative of the Sponsoring Powers, the word 'international' was added
to make it perfectly clear that the Organization would concern itself only with disputes
among the nations, a conclusion stated more explicitly in the seventh principle."''^
Prominent international legal scholars have taken the view that the language in Article 1(1)
of the Charter referring to "intemational disputes or situations which might lead to a breach
of the peace"^^ limits the competence of the Security Council to addressing only disputes
involving more than one State.^
I believe a better view of the Charter is to recognize a right of the Security Council
to address any development within the world community that constitutes a threat to
intemational peace; and, even if the Charter was originally intended to exclude intervention
in matters occurring within a single State, the reality is that post-Charter customary and
conventional intemational law have recognized an international legal interest in certain grave
human rights violations even when they don't threaten to ^ill over into other States. The
current U.N. intervention in Somalia reflects the changes in intemational law,^ and it
''^ CHARTER OF THE UhflTED NATIONS. REPORT TO THE PRESIDENT ON THE RESULTS OF THE SAN
FRANCISCO COl^FERENCE BY THE CHAIRMAN OF THE UNITED STATES DELEGATION, THE SECRETARY
OF STATE, June 26, 1945 at 95 (Dcp't of Siaic Pub. 2349. Coof. Ser. 71).
'8 VJN. Charter, Art. 1(1).
^' See, e.g., Jiindncz dc Arichaga, "Le Traitemeni des Diffirends Intemtuioiumx par Le Conseil de
Siamtt." 85 (1) RECUEO, DES COmS 5, 14 (1954).
^^ One might, in the alternative, argue that the almost total breakdown of govemmenial structure in
Somalia created a res nullius situation in which there was no functioning sovereign entity whose "rights"
could be violated.
154
Statement of Prof. Robert F. Tuiner
3 March 1994, page 37
might arguably be useful to codify these new practices — perhaps by inserting an entirely
new chapter in the Charter between the current chapters VI and VH
Another issue that it might be useful to clarify through the amendment process is
whether the Security Council can engage in "enforcement measures" pursuant to Article 42
of the Charter in the absence of Article 43 agreements. In 1948, Secretary General Trygve
Lie argued that "aimed action" under Article 42 "may be undertaken only in accordance
with special agreements contemplated by Article 43 or pending the coming into force of
such agreements by the five Members referred to in Article 106."*i Three years later,
Oscar Schachter, Deputy Director, General Legal Division, of the Legal Division of the
U.N. Secretariat — who went on to become one of the world's preeminent international
legal scholars as a Columbia Law Professor — took a quite different position, arguing that:
[T]here is clearly nothing in the text of Article 42 which would
preclude the [Security] Council from applying it without the
use of the forces contemplated under Article 43. Would it not
be possible for the Council to decide upon the use of armed
forces under Article 42 and then to use armed contingents
organized independently or voluntarily placed at the disposal
of the Council by Member States?'^
The issue may be said to have been finessed in both Korea and the Gulf war, when
the Security Council "recommended" or "authorized" States to use force but did not direct
the use of military force. My own sense is that this is not at present a major issue; but if we
do decide not to go forward with the agreements envisioned by Article 43 (and other States
are highly unlikely to do so without the leadership of the United Sutes), it might be useful
to clarify the authority of the Security Council to seek alternative sources of military forces
for Chapter VII enforcement actions. Ultinoately, of course, such matters are best dealt
with through international negotiations and diplomacy, which are beyond the institudonal
competence and constitutional authority of the Legislative branch.
81 UJ>J. GENERAL ASSEMBLY, OFTICIAL RECORDS. 3d Sess.. PL 2. Henary Meetings. Annexes, A/656
at 10.
82 Oscar Schachter, The Place cfLaw in the Uniud Nations, 1950 ANNUAL REVIEW OF UNTTED NATICWS
AFFAIRS 221 (1951).
155
Statement of Prof. Robert F. Turner
3 March 1994, page 38
III. For Prudential Reasons, the President Should Consult With
and Seek the Approval of a Responsible Congress
I believe it is critically important in the analytical policy-making process to
distinguish questions of law from questions of policy. Even if one concludes, as I have,
that the Qmstitution does not mandate a congressional role in the decision to deploy troops
abroad or into the lands of potential hostilities we have been talking about; it may well be
wise for the President to involve Congress in the process for prudential or political reasons.
As I said in the beginning, it is important to keep focused upon our objectives as a
nation, one of which — I hope — is to promote an international regime in which potential
aggressors are deterred from using force by the perception of a strong and determined
world community. History demonstrates that fcmnal resolutions of support in times of
potential crisis can greatly strengthen the nation's credibility and make an armed
confironution less likely. One only has to look at the successes that followed the
congressional joint resolutions of support during the crises involving Formosa in 1955, the
Middle East in 1957, and the Cuban Missile Crisis in 1962, to see the tremendous
contribution that Congress can make to deterrence if it is willing to accept the political risks
of possible failure.
For this reason, a wise President might well ask a responsible Congress for a joint
resolution of approval as a means of placing a potential aggressor on notice that the United
States — which, for the foreseeable future, will be a key player in United Nations
peacekeeping operations even if no U.S. combat forces are actually deployed simply
because of our unmatched military potential — has the will as well as the military capability
to inflict unacceptable pain upon any aggressor.
156
Statement of Prof. Robert F. Turner
3 March 1994, page 39
IV. Congress in the Post-Vietnam Era
Has Frequently Acted Irresponsibly—
and in So Doing Has Endangered Peace
and Contributed to the Loss of American Lives
A wise President will only reach out beyond the minimum requirements of the
Constitution if he is dealing with a responsible Congress. The key word here is
"responsible," and I shall devote my final remarks to what I believe has been a tragic and
extremely harmful congressional legacy of irresponsibility on questions of war and peace
during the past quarter of a century.
If Congress refuses to be willing to take the political risks of supporting operations
that may fail — and, even if they ultimately "succeed," may involve the loss of constituent
lives and upset voters who fail to understand the importance to U.S. security of
cooperating in multinational peacekeeping — it may turn out to be the ease that involving
Qmgress formally in diis process will undermine deterrence and increase the likelihood that
American military personnel will be coming home in body bags.
The Korean Conflict As Background
Perhaps it is useful to place events in context, aixl to begin with a lode at the United
States response, pursuant to the recotmnendation of the U.N. Security Council, to North
Korean aggression against South Korea in June of 1950. I must admit that in some of my
own past writings and congressional testimony on separation of powers issues I have
argued that President Truman infringed upon the constitutional rights of Congress by not
seeking formal authority to use force in Korea. I continue to believe strongly that prudent
policy considerations should have led to a request for a congressional endorsement, which
even Senator Robert Taft acknowledged would easily have been passed and would have
157
SUtement of Prof. Robert F. Turaer
3 March 1994, page 40
had his own support — but some nx)re recent research into the facts has left me less critical
of President Truman.
For example, it is now clear that President Truman was leaning towards having
Congress enact a resolution of approval for the conflict and a proposed text had already
been drafted by the Department of State. Ironically, we now know that a key factor in
setting this idea aside was advice Truman received from the Senate Majority Leader that it
would be a bad idea to either formally "consult" or seek authority from Congress. A "top
secret" memorandum published in the Foreign Relations of the United States series by the
Department of State reflects that Truman called together his senior advisers and Senate
Majority Leader Scott Lucas at Blair House on 3 July 1950 — about a week after the
outbreak of the Korean war. Secretary of State Acheson made a presentation calling for the
President to address a Joint Session of Congress and "this report to the Congress would be
followed by the introduction of a Joint Resolution expressing approval of the action taken
in Korea."
President Tr\iman pressed Senate Majority Leader Lucas for his opinion, and the
menoorandum records:
Senator Lucas said that he frankly questioned the desirability
of this. He said that things were now going along well ....
He said that the President had very properly done what he had
to without consulting the Congress. He said the resolution
itself was satisfactory and that it could pass. He suggested as
an alternative that the President might deliver this message as a
fireside chat with the people of the country. . . .
Senator Lucas said that most of the members of Congress vvere
sick of the attitude taken by Senators Taft and Wherry [who
had questioned the President's constitutional authority to send
forces to Korea]. . . .
Senator Lucas said that to go up and give such a message to
Congress might sound as if the President were asking for a
declaration of war. . . . [T]he President would l>e practically
asking for a declaration of war if he came up to the Congress
like this. On the other hand, a fireside chat with the people
would be good. . . .
The President said that It was necessary to be very careful that
he would not appear to be trying to get around Congress and
use extra-Constitutional powers. . . .
158
Statement of Prof. Robert F. Tamer
3 March 1994, page 41
The President said that it was up to Congress whether such a
resolution should be introduced, that he would not suggest it.
Senator Lucas said that he felt he knew the reactions of
Congress. He thought that only Senator Wherry had voiced
the view that Congress should be consulted. Many members
of Congress had suggested to him that the President should
keep away from Congress and avoid debate. ... He did not
think that Congress was going to stir things up.'^
On 19 July, the President submitted a detailed written report on "The Korean
Situation" to Congress. He made no request for formal authorization, but did notify
Congress that additional funds would be needed for a variety of programs because of the
war.^^ As Professor Henkin has noted, "Congress acquiesced in and ratified the
President's action."^ When Senator Taft and a small handful of others continued to attack
the President for usurping legislative powers, they were met by powerful responses from
Truman defenders like historians Heniy Steele Commager and Arthur Schlesinger.^
In retrospect, as a matter of sound policy I continue to believe that Tnmian erred in
not seeking formal statutory approval for his actions. But the evidence suggests that the
charge that he "disregarded" the Congress is untrue. A key factor in his failure to follow
through on the original plan to seek such a resolution was the advice he received &om the
Senate leadership.
Mr. Chairman, I have already touched on the Vietnam issue, but very briefly 1
would like to mention some of the incidents that have arisen under the War Powers
Resolution.*'^
83 Memorandum of Conversation, in VD FOREIGN RELATIONS OF THE UNITED STATES 1950— KOREA
2S6-91 (1976).
" CONG. REC. 10,626-30 (19 July 1950).
85 Louis Henkin, Lecture: Congress, the President and the United Nations, 3(1) PACE Y.B. INT'L L. 1. 5
(1991).
^ See ROBERT F. TURNER. REPEAUNG THE WAR POWERS RESOLUTION 36 n. 21 (1991).
8^ Some of these arc discussed in greaier detail in my two books on the War Powers Resc^ution, mentioned
above. /
159
StatemcDt of Prof. Robert F. Tarner
3 March 1994, page 42
From Mayaguez to Iran —
A Study in Political Expediency
When President Ford ordered U.S. forces into combat in die air over Cambodia, on
the sea off its shores, and on its land territory in an effort to rescue the crew of the
merchant ship, SS. Mayaguez, in May 1975, he flagrandy violated^ the Cooper-Church
Amendment that prohibited the use of funds to support combat operadons in the air, off the
shore, or on the ground of Caoibodia. When he did so without "consulting" Congress — he
merely had staff members telephone key leaders to inform them the operation was getting
underway — he arguably violated Section 3 of the War Powers Resolution.^' By using
force without formal congressional authority to rescue private American citizens, he clearly
violated the language of Section 2(c) of the Resolution.
One might well have expected the Congress to go through the roof; after all, this
was (xie of the first tests of the important new law designed to "prevent fiitiue Vietnams" —
and Gerald Ford was not even an "elected" President But instead, the Senate Foreign
Relations Committee unanimously passed a resolution praising the operation and asserting
that it had fuUy complied with the "spirit" of the War Powers Resolution.
Five years later, when President Carter attempted a similar rescue of American
hostages in Tehran, the Chairrnan and Ranking member of the same Foreign Relations
Committee solemnly held a press conference and denounced him for violating the War
Powers Resolution. Unlike President Ford, the Iranian rescue operation was not
prohibited by an appropriations rider outlawing the use of funds for such purposes. If
anything. Carter had a stronger case for the need to act in secret
^^ In President Ford's defense, it ma^) be wonhwhile lo mention that this statute was of very dubious
constitutionality.
^' To the extent that the statute is interpreted to legally require "consultation'' in such circumstances it is
probably unconstitutional. When time and operational security pemit, however, it is almost always
desirable for the President to consult with Congress as a matter of comity and to insure understanding that
may enhance public support for the operation.
160
Statement of Prof. Robert F. Turner
3 March 1994, page 43
There was yet one additional difTerence between tbe two operations — die Mayaguez
rescue was perceived by the public as a great success, while Carter's Iran mission ended in
failure. I believe that is the real explanation for the different reaction in Congress. TMs
was not a matter of constitutional principles at all. but merely a matter of political
expediency. The War Powers Resolution provided useful "cover" — members of Congress
could not be held accountable by their constituents if they could show that the real problem
was that President Carter "broke the law."
A similar explanation can be found for the congressional reaction to the Grenada
intervention in 1982-83. Members denounced President Reagan as a lawbreaker until the
public opinion polls showed overwhelming public support for the operation; and then, all
of a sudden, congressional opposition leaders announced they had "reconsidered" and had
concluded that the President's actions had been "fully justified." A Foreign Affairs
Comminee hearing on the legal issues of the (^ration was quietly "postpcmed" — never to
resurface.
The Beirut Tragedy-
Partisanship and Irresponsibility at Its Saddest
Ignoring for the moment the tragic consequences of the decision by Congress to
terminate aid to Cambodia and South Vietnam — which led to the loss of life for millions
and the loss of freedom for tens of millions of people who had trusted the United States —
perhaps the saddest exaiiq)le of the harm Ccmgress can do when it takes a partisan approach
to foreign policy problems occurred during the deployment of U.S. Marines to Beirut,
Lebanon, in 1982-83. Virtually no one criticized the deployment on the merits at first —
after all, the United Sutes had joined forces with three other States in an effort to bring
enough tranquillity to Beirut that the feuding factions could try to negotiate a peace
agreement. It was a "presence" mission, pure and simply, and every State in the region
had endorsed the idea.
I
161
SUtement of Prof. Robert F. Tainer
3 March 1994, page 44
The Marines were not even arguably engaged in conduct that necessitated a
"declaration of war" — by any definition — and it would have been hard to imagine against
what Sute congressional critics thought the President was attacking when they suggested
he was usurping their power by this United Nations approved mission of peace.
Consultation and reporting "consistent with" the requirements of the War Powers
Resolution took place, but several congressional leaders accused the President of
"threatening a constitutional crisis" when he reported under the "equipped for combat"
provisions of the resolution rather than the requirements of Section 4(a)(1) for tnx>ps being
sent "into hostilities or into situations where imminent involvement in hostilities is clearly
indicated by the circumstances." In reality, it would be almost exactiy a year before there
were any American casualties produced by "hostilities,"^ but that didn't stop the
congressional criticism. Members of Congress knew there was a chance things could go
wrong, and they did everything possible to make it clear that President Reagan was "on his
own" if anything did go wrong.
As the 1984 election campaign approached, the fight became even more partisan.
Congress insisted that the War Powers Resolution had to be "implemented," and began
debating resolutions to authorize the President to keep the forces in Beirut for a limited
number of months. The fact that the level of hostilities in Washington was getting hotter
than in Beirut was not missed by anti-U.S. radicals in the region; the Syrian Foreign
Minister went so far as to tell an American visitor that his government had concluded the
Americans were "short of breath" and would soon abandon their oommitmenL
Marine Commandant P.X. Kellcy went before the Senate Foreign Relations
Committee and virtually begged the members to stop the partisan bickering and to avoid
setting a time limit on the deployment Such conduct, he said, was endangering the lives of
90 Early during the deployment, two U.S. servicemen were killed while attempting to defuse an explosive
device left behind by the Israelis when they occupied the same location — but die only way that could have
been evidence of an infringement of the power of Congress to "declare war" would be if one concluded that
it meant the United States was launching a war against Israel.
162
SUIement of Prof. Robert F. Turner
3 March 1994. page 45
his Marines. Shortly thereafter, in a straight party-line vote, the Republican-controlled
Foreign Relations Committee by a narrow margin reported out legislation to continue the
deployment another eighteen months. The report included a section endded "Minority
Views of All Democratic Members of the Committee" — a level of partisanship I had never
witnessed in my five years working with the committee during the final suges of the
Viemam war, and when the Senate finally voted the President received authorization by a
vote of 54-46. A shift of just four votes would have ended Senate support for the
operadon, and the uncertain nature of the 18-month extension was emphasized when
Senator Percy. Chairman of the Foreign Relations Committee and the bill's floor manager,
explained that the issue could be immediately "reconsidered" if there were further
casualties.
The message was not missed in Beirut. A couple of weeks after the Senate vote,
our intelligence people in Beirut intercepted a message between Moslem militia units
saying: "If we kill fifteen more Marines, the rest will go home." Days later, a terrorist
drove a Mercedes truck into the Marine Battalion Landing Team Headquarters and
detonated a powerful bcHnb. Two hundred and forty-one American servicemen were killed
in an instant
Immediately, Congress launched an investigation of the tragedy and demanded that
General Kelley uring forth the head of a Marine who could be held responsible. General
Kelley had too much character and political courage to do that; and by resisting the pressure
to produce a scapegoat he knowingly sacrificed his chance to become the first Marine
Chairman of the Joint Chiefs of Staff. Such courage is a rarity in Washington in the post-
Vietnam era.
Who was responsible for the killing of these Marines and sailors? To be sure, the
terrorist who drove the truck and the extremists who helped him along bear much of the
blame. But. from my perspective. Congress, too, was very much a cause of the tragedy.
Because the partisan debate in Washington served to undermine deterrence; and, by
163
Sutemeni of Prof. Robert F. Tunicr
3 March 1994, page 46
sending a strong signal that further American casualties would lead to a reconsideration of
the statutory authorization. Congress virtually placed a "bounty" on the lives of our troops.
But the American people totally missed this aspect of the tragedy, and no one was held
accountable. Other than the 241 Marines, the only serious casualty was the cause of
international peace.
Undermining Deterrence in the Gulf —
Sending the Wrong Signals to Saddam
One can never be certain about such things, but I believe there was a good
likelihood that the Gulf war (Operation Desert Storm) was unnecessary. Had Congress
been willing to take some of the risk by standing united beside the President and the
Security Council, Saddam might well have been deterred and withdrawn his forces as early
as December 1990 without the need for further fighting. There were signs he was having
second thoughts, particularly after the Security Council passed Resolution 678 in
November, authorizing the U.S. -led coalition supporting Kuwait "to use all necessary
means to uphold and implement resolution 660 . . . and all subsequent relevant resolutions
and to restore intemaxional peace and security in the area [en^hasis added]"
Until that time, the only military objective agreed upon by the Security Council was
the demand made in Resolution 660, approved immediately following the 2 August
invasion, "that Iraq withdraw immediately and unconditionally all its forces" to the
positions in which they were located "on 1 August 1990." Ignoring, for a moment, the
issue of why the United Nations was demanding that Iraqi forces remain poised to attack a
neighbor — instead, for example, of just saying withdraw them firom Kuwait, which might
have left open the option of a massive demobilization or sending them home on leave — the
message sent to Saddam by Resolution 660 was that he was personally not at risk. All the
U.N. was demanding was the removal of his forces from Kuwait; and, presumably, that
would be the objective of any force that might be used to implement that resolution.
Saddam had sacrificed hundreds of thousands of Iraqi soldiers in his aggression against
164
Sutement of Prof. Robert F. Torner
3 March 1994, page 47
Iran during the 1980s, and there was no reason for anyone to expect him to fold his hand
when the only thing of value to Iraq placed apparently at risk were the lives of a few more
soldiers.
Resolution 678 raised the stakes, in a deterrence sense. What military measures
might be considered necessary "to restoe international peace and security in the area" was
less certain — especially if, from Saddam's perspective, an apparent "madman" like George
Bush was going to interpret the mandate. By the third week in November there were some
signs that Saddam was having second thoughts about his adventure, such as reports Iraq
had released a new map which claimed only a couple of islands rather than all of Kuwait as
Iraqi territory.
The world community was uniting around the United States, and it was becoming
clear that the Security Council was likely to avoid a permanent member veto. To be sure,
the motivation of many countries may have had iDore to do with the thought of Saddam
cornering a large share of the world's oil production capability than with upholding the rule
of law; but, whatever the reason, the United Nations peacekeeping machinery apptaied to
be working in the face of major international aggression for the first time in four decades.
But then Congress entered the picture. Keep in mind that Saddam, like radical
dictators elsewhere, was very much aware that Congress had "pulled the plug" to permit
cooimunist victories in Indochina, and had almost produced the same results by tying the
President's hands in Angola and Nicaragua. Indeed, it was cleariy understood by friends
and foes alike that America's greatest weakness was the lack of "will" of the legislative
branch to continue with the nation's commitments when the going got tough.
Even in the early days of the crisis, members of Congress made it clear that they
would not risk being held accountable for military action if anything went wrong. America
has fortnally "declared war" five times in its history, and each time the joint resolutions
could be accurately characterized as "blank checks." After all, the constitutional role of
Congress was to authorize for the President, as Commander in Chief, to lead American
165
Sutcment of Prof. Robert F. Tarner
3 March 1994, page 48
military forces into war. Congress had no responsibility for the "conduct" of the war or the
strategic and tactical decisions conceming how the war is to be carried out
This division of power was very much a product of the recognized institutional
competencies of the two political branches. Congress could not act with speed and
dispatch, it would not have access to foreign intelligence information or the continuing
advice of high level military planners, and its members were not expected to have more
than a casual knowledge of the business of war. Its job was to decide on behalf of the
American people whether the underlying cause was wnth pursuing at substantial cost to
the treasury and risk to the lives of the nation's youth.
But, almost immediately as the crisis developed, members of Congress began
assuring the public — and in the process, Saddam Hussein — that they had no intention of
giving George Bush a "blank check" to help the United Nations defend a victim of massive
and flagrant armed international aggression. As Senator Ernest Hollings put it two months
after the invasion, "there will be no Gulf of Tonkin Resolution this time around. Senate
Concurrent Resolution 147 is limited in its so^, and neither explicidy nor in^licitly gives
license to the President to wage an unprovoked offensive against Iraq."^' United Sutes
participation in Security Council-approved enforcement against Saddam Hussein to uphold
the Charter would be "unpiovc^ed" and "offensive"? Saddam must have loved it
The situation was clearly made worse by the fact that both Houses of Congress
were in the hands of a political party that had as a primary goal the undermining of
President Bush so he could be defeated in 1992; and the partisan nature of much of the
debate was ^parent frixn the press accounts.'^ Tune and again, congressional Democratic
leaders warned the President in public statements that he lacked any authority to use
military force to uphold the Charter against Saddam's aggression. More than fifty
members even sued the President to get the judiciary to join in the attack on the President
'• CONG. REC. S. 14337 (daily ed. 2 Oct 1990).
^ See, e.g.. Michael Wcisskc^f. Democrats Criticue Gu^ Policy, WASH. POST, 12 Nov. 1990 at Al.
166
Statement of Prof. Robert F. Turner
3 March 1994, page 49
and to establish clearly that he lacked constitutional power to uphold the Charter in
response to Saddam's aggression.'^
President Bush, in the meantime, was trying very hard to send strong signals to
Saddam that he must withdraw his forces immediately from Kuwait — where his troops
were raping and torturing innocent people on a widespread basis, including murdering
children in front of their parents and using power drills on the j<rints and skulls of detainees
to pass the time — and in so doing the President certainly did not emphasize any belief that
he lacked power to act Congress was clearly unwilling to stand united beside the
President As one commentator observed:
The uncertainty of voters* sentiments and the situation in the
Persian Gulf probably led most members of Congress to take a
'Vait-and-see" approach regarding support for Bush. Perhaps
Congress was content to let Bush take the political heat from a
failed operation. ... By the end of the year, the Bush
Administration was met head-on with coneressional attempts to
limit its power over the use of force in the Persian Gulf.
Bipartisan support for Bush's actions began to crumble as
Congress realized the potential consequences of United
Nations Resolution 678 authorizing the use of force.''*
Saddam Hussein must have been particularly reassured as CNN began carrying the
public hearings orchestrated by DenK>cradc presidential hopeful Senator Sam Nunn, who
brought together a carefully selected group of nay-sayers to argue that using military force
against Iraq would produce disastrous consequences and economic sanctions should be
given more time to work. By mid-December, it seemed clear to virtually everyone that the
President's saber-rattling efforts to persuade Saddam to withdraw his forces from Kuwait
without a fight would not succeed.
If anything, things got even worse as the new year began. I remember testifying
before the Senate Judiciary Conunittee at an important hearing on 8 January — just hours
^^Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990).
'* Brian M. Spaid, Collective Security v. Constitutional Sovereignly: Can the President Commit U.S.
Troops Under the Sanction of the United Nations Security Council Without Congressional Approval, 17 U.
DAYTON L. REV. 1055. 1083. 1084 (1992).
167
Sutement of Prof. Robert F. Taracr
3 March 1994, page 50
after President Bush had sent a letter to Congress requesting formal statutory authorization
for the use of force to implement Security Council Resolution 678.^ For all practical
purposes, the President had already acquiesced to congressional demands. But that didn't
prevent Senators and witnesses firom announcing to the worid that the President ought to be
impeached if he used force without first obtaining congressional authorizadon. As I sat
there in shock, I could only wonder how Saddam would react to the news that the U.S.
Senate Judiciary Committee was openly discussing impeaching President Bush for his
handling of the Gulf crisis. At that point, it was clear to me that American soldiers — and
Iraqi soldiers as well-^would have to die if the Charter was to be upheld.
History records that Congress ultimately did grant the President authority to use
force in the Gulf, but it did so grudgingly and by the narrowest of margins. In the Senate,
for example, 85 per cent of Democratic Senators voted to deny the President any authority
to iiiq)lement the Security Council's authorization. Senate Joint Resolution 2 was approved
52 to 47'^; which means that Saddam knew he only had to change the minds of three
Senators and President Bush would no longer have the support of the upper chamber.
Given the record of Congress in Vietnam when things got tough after hostilities were
approved by a combined vote of better than 500 to 2, Saddam must have been reassured
that, if he could only prolong the conflict and send back enough Americans in body bags,
Congress could be counted upon to again "puU the plug."
Little noticed in this process was the actual text of the joint resoludtms approved by
the House and Senate. The identical language did not, in fact, give the President authority
to implement Security Council Resolution 678 as he had requested. That resolution, it
should be remembered, authorized Members of the United Nations not only to drive Iraqi
forces out of Kuwait, as demanded by Resolution 660, but also "to use all necessary means
... to restore international peace and security in the area . . . ." Neither Saddam nor
95 •'Lcacr to Congressional Leaders on the Persian Gulf Crisis." 27 WEEKLY COMP. PRES. DOCS. 17 (8
Jan. 1991).
96 CONG. REC. S 403 (daily ed.. 12 Jan. 1991).
168
Statement of Prof. Robert F. Turner
3 March 1994, page 51
Congress wanted President Bush to have that idnd of leeway — ^who could be certain he
would not use it as justification for going all the way to Baghdad and arresting Saddam as a
war criminal. So, while the congressional joint resolutions asserted they were acting
pursuant to Resolution 678, Congress only authorized the President to use force — and then
only after he certified that it was absolutely necessary^ — to inclement Security Council
Resolutions 660 through 667. Absolutely no authority was given to "implement"
Resolution 678, and that, too, must have been welcomed news in Baghdad.
In explaining why the management of foreign affairs had to be entrusted to the
Executive, both John Locke and John Jay observed that it was impossible to predict in
advance (as Locke put it, "by antecedent law") what might happen on the battlefield or in
another country. Success in such matters required that power be vested in an endty capable
of reacting quickly to sudden surprises and responding effectively. Ironically, few nKxlem
events have confirmed the wisdom of this logic more clearly dian Operation Desert Storm;
vinually no one predicted the brilliant success that U.S. forces would have on the
battiefield. Had he so wished, the President could have ordered U.S. forces to continue
into Iraq, bring Saddam and his fellow war criminals back to stand trial, and perhaps even
pushed for some son of U.N. trusteeship arrangement pending the hokling of free elections
to establish a free and denKxratic Iraq. But Congress had not foreseen how successful
General Schwarzkopf would be, and Congress had not authorized the President to go one
step further than ejecting Iraqi troops from Kuwait^
^^ Presumably, if anything went wrong Members of Congress could announce that President Bush violated
the law when he concluded that economic sanctions would not work. After all, there was an extensive
hearing record made by Senator Nunn's Armed Services Commioee in siq>port of such a position. In
retrospect, of course. Senator Nunn's "experts" didn't fare too well. Even when combined with Operation
Desert Storm, UJ4. sanctions had still not accomplished very much a year after the war was over. It is
highly unlikely that the American people would have pennioed President Bush to keep their sons and
daughters in the hot Saudi desert for that length of time, even if the coalitioa had not self-destructed and
Congress had provided the necessary funds for the extended depkiymem.
^^ It is not my contention that this was a primary factor in President Bush's decision to halt the operation.
There were bodi humanitarian considerations and issues of the regional balance of power, to have eliminated
Saddam Hussein might have left a powerful and very radical Iran unchecked. Nor is it my view that the
President lacked the constitutional authority to implement Resolution 678 despite the failure of Congress to
incorporate that objective into its resolution.
169
Sutemenl of Prof. Robert F. Tamer
3 March 1994, page 52
The basic objective of liberating Kuwait and depriving Saddam of his illegal gains
had been achieved, and public support for the President soared. Many congressional
Democrats who had voted to deny the President any authority to use force against Iraq
apparently could not resist the temptation to suggest that President Bush had been
something of a "wimp" in halting the operation too soon — in another 48-hours he could
easily have taken Baghdad and put Saddam out of business. The one thing we can be
confident about is that, had the President decided to continue beyond the borders of Kuwait
and suffered a major reversal, those same Democrats would have been calling for his
impeachment for exceeding the authority granted by the resolution they had sought to block
on 12 January.
The final irony, from my perspective, occurred in 1992, when I was invited to
testify before the Senate Foreign Relations Committee about the utility of entering into an
Article 43 agreement with the Security Council to further take advantage of the great new
"opportunities" that awaited us in the aftermath of the success of Desert Storm. As I
listened to one member of the majority party after another attack President Bush for his
failure to pursue these wonderful opportunities aggressively enough, I couldn't help but
think to myself that if they had had their way back in January of 1991 the President would
have been barred from cooperating with the Security Council in the Gulf. That, in turn,
would certainly have brought an end to the coalition Bush had carefully put together, and
these great new "opportunities" I was hearing about would have quietly gone down the
drain.
Denying the Request for Tanks to Protect U.S. Forces in Somalia —
Congressional Fingerprints and Still More Unnecessary Casualties
I'm not going to spend much time discussing last year's tragic blunder in Somalia
involving the denial of M-1 tanks, as the Washington Post provided a detailed description
170
Sutement of Prof. Robert f. Tamer
3 March 1994, page S3
for anyone who wants the details.^ In essence, our military commander in Mogadishu,
Major General Thomas M. Montgomery, sent a secret message to the Pentagon on the
subject "U.S. Force Protection." In it, he requested that some M-1 Abrams tanks be sent
to Somalia. He argued: "I believe that U.S. forces are at risk without it" When Joint
Chiefs Chairman General Colin Powell handed the message to the Secretary of Defense on
23 September, the Post reports that Aspin responded by saying "[t]hat isn't going to
happen." From this and other press accounts, and from public statements made by
Pentagon ofHcials on talk shows, it appears that the primary underlying concern was that
Congress would be angered by any indication that the Administration was "building up" in
Somalia while it was assuring Congress we were on the way out The Senate had already
approved "a nonbinding resolution that Clinton should obtain its consent for the Somalia
mission by November 15 or withdraw."i°°
On 3 October, Somali militiamen killed 18 Americans and wounded 7S more imder
circumstances in which loost experts agreed that a few Abrams tanks would have turned the
tide. As the Post concluded, the victims "were trapped, in part for lack of armor, under
enemy fire."i°i It soon leaked out that Secretary Aspen had turned down the request for
such tanks, and the public became angry. Public opinion polls indicated that, by a margin
of 52 to 36 percent, Americans disapproved of the way the Somalia situation was being
handled. »02
Predictably, Members of Congress promptly called for Les Aspin's resignation —
which was soon to follow. How dare he consider the likely congressional reaction to such
a request for equipment in making a decision. Besides, if enough heat could be directed at
Secretary Aspen, perhaps no oue would notice the impact the congressional attacks were
having; not only in persuading Pentagon civilians that Congress would not tolerate sending
^ Barton GeUinan, The Words Behind a Deadly Decision: Secret Cables Reveal Maneuvering Over Request
for Armor in Somalia. WASHINGTON POST, 31 October 1993 at Al.
101 Id.
^^ ABC News poU iqxMted on "Nightlinc," 7 October 1993.
171
Statemcnl of Prof. Robert F. Turner
3 March 1994, page 54
tanks to Mogadishu to protect the lives of American soldiers, but also in signaling
Mohamed Farah Aideed that America was again "short of breath" and signaling our United
Nations allies that America had once again lost its "will" to meet its ccxnmitments. As had
been the case in Beirut almost exactly a decade earlier, American lives were lost
unnecessarily because of the desire of Congress to micromanage the President's exercise of
his independent constitutional powers.
One of the strange things about combat troops is that Presidents tend to send them
to dangerous parts of the world during times of crisis. There is often — by the very nature
of their profession — a good chance that some of them are not going to come back. I know
about this, because I served twice in Viemam — and some of my friends did not make it
back. We understood the risks from the enemy, and I Uke to think that we were
professionals in coming to terms with it But what we were never able to come to terms
with were the "hits" we took from members of our own Congress. It hasn't gotten much
beaer.
Imposing "Deadlines" on Military Deployments —
or How Congress Can Guarantee Mission Failure
I have already mentioned what I believe to have been the shortsightedness of the
Administration in announcing in advance that troops being sent to Haiti would be
immediately withdrawn if hostilities resulted. It would be difficult to think of a more
obvious way to endanger the lives of the men and women who serve in our armed forx^es —
and it was almost certainly done as a means of reassuring Congress that there was nothing
to worry about
Mr. Chaiima?. if our guiding principle in deploying military forces is going to be to
avoid circumstances where there might be something to "worry about" — like American
soldiers coming under fire or even being killed — we are wasting hundreds of billions of
dollars on a useless military and ought to quickly get out of the business of pretending to be
172
Statement of Prof. Robert F. Turner
3 March 1994, page 55
a world leader. By their very nature, militaiy operations involve danger, and they involve a
great deal more danger when our political leaders signal the "bad guys" overseas that they
will get their way if they can just Idll a few American soldiers or Marines.
This, of course, is precisely what Section S (a) of the War Powers Resolution does,
at least as it has been interpreted by Members of Congress over the past two decades. If a
terrorist group succeeds in shooting (or blowing up) one or more Americans in uniform,
members of Congress contend this automatically starts the war powers "clock" running and
the President is given 62 days to either withdraw U.S. troops from the area or persuade
Congress to essentially declare war. At minimum, it virtually guarantees a heated political
confrontation in the United States in which congressional leaders and assorted newspaper
editors will denounce the President as a "lawbreaker" — and that, by itself, provides a
strong incentive to our enemies to target our military forces.
One of the more alarming modem trends is for Congress to either impose a
timetable or demand that the President set a fixed withdrawal deadline before it will support
any deployment of troops into harm's way. Few things are more likely to undercut
deterrence, demoralize our own forces, and signal the enemy and any allies who stay with
us that we are not serious in our commitment
Imagine, for a moment, if when President Roosevelt went to Congress in 1941
after Pearl Harbor for a resolution of support he had been met with this response from the
Hill:
Well, Mr. President, you must understand that the Constitution
gives the power to declare war to Congress. Now, we want to
cooperate, but first we need to know a few things. For
example, what day will you bring the boys home? And what
about the "rules of engagement"? Are you going to equip them
with tanks and machine guns? That could be a problem. What
assurances can you give us that there won't be any American
casualties? You must understand that it will be very difficult
to get this through the Congress unless you can provide strong
and binding assurances that our forces won't be harmed — after
all, the election is less than a year away!
173
SUtcment of Prof. Robert F. Turaer
3 March 1994, page M
For precisely the same reasons that Locke, Jay, and othen explained that Congress
could not manage foreign affairs by "antecedent laws" — it was not possible to predict what
other countries might do or how the tide of battle might flow during combat — no President
can with any confidence give Congress the kinds of assurances it now demands. If the
enemy reinforces his forces or persuades an ally to enter the fray, the conflict may be
prolonged and more troops may be necessary on our side. If we play it smart and get a
little lucky, as occurred in the Gulf, our casualties may be only a tiny fraction of what the
best experts anticipate. With the modem congressional practice of trying to bind the
President in legal constraints, good faith assurances as to the duration of an operation and
anticipated casualties become legal rules. If the President deploys Abram tanks to support
American troops after promising Congress he will abandon his cause if he can't achieve his
objective by an artificial IS March 1994 deadline, that may be evidence that he is "lying"
and that Congress must again grab for the helm.
There is really only one thing that is predictable in such circumstances: Deterrence
will fail. That means American men and women will have to die, and it quite probably
means that the chances for a New World Order of real collective security wiU be
undermined. Congress needs to understand that we still live in a dangerous workl. and the
kinds of partisan and irresponsible conduct I have been outlining is guaranteed to noake it
an even more dangerous world. In my view, this is inexcusable.
V. Congress Should Support the Constitution
Mr. Chairman, Members of Congress take an oath of office to "support the
Constitution,"!^^ and no one can quarrel with the desire of Congress to protect its
constitutional prerogatives. But, in all candor, this dedication to the rule of law would be
even more impressive if Congress spent as much time trying to protect the constitutional
rights of the other branches.
>03 U.S. CONST., Art VI.
174
Statement of Prof. Robert F. Turner
3 March 1994, page 57
For example, after the Supreme Court held in IJ^S. v. Chadha that the legislative
veto was unconstitutional. Congress not only left hundreds of such statutes unchanged and
on the books; it also proceeded to enact more than 200 additional unconstitutional
legislative vetoes.
The 1973 War Powers Resolution stands as another noonument to legislative
lawbreaking. To begin with, as already observed, it was enacted as a political ft^ud to
deceive the American people into believing that Congress had not been a ftill partner in
getting the country into an unpopular war. In reality, it is closer to the truth to say that
Congress dragged President Johnson into the war. Some of the strongest supporters of the
War Powers Resolution by 1973 were a dozen years earlier denouncing LBJ for not
recommending sending combat troops to Vietnam^i^, and, when as President he finally did
request statutory authorization for hostilities and seek additional funds for the conflict.
Congress gave him a neariy unanimous authorizadon and more than doubled the amount of
money he had sought
The War Powers Resolution is also unconstitutional. It not only has a clearly
imconstitutional Chadha "legislative veto" in Section S(c): but even Senate Majority Leader
George MitcheU has admitted that it is flagrantiy unccmstitutional in other respects as well.
He said the Resolution "oversteps the constitutional bounds on Congress' power to control
the Armed Forces in situations short of war," and "unduly restricts the authcvity granted by
the Constitution to the President as Commander in Chief . . . ." Contrary to its asserted
goal of fulfilling the intentions of the Founding Fathers, Senator MitcheU aHtninf/< that "the
War Powers Resolution actually expands Congress' authority beyond the power to declare
war to the power to limit troop deployment in situations short of war . . . ."^^
And that's not alL More and more Members — people of the stature of Senator Sam
Nunn — are acknowledging the horrible impact this imconstitutional and essentially
^^ See ROBERT F. TURNER. REPEALING THE WAR POWERS RESOL>UTION 15-16 (1991).
1°5 CONG. REC. 6177-78 (19 May 1988).
175
Sutement of Prof. Robert F. Turner
3 March 1994, page 58
fiaudulent statute has had on detenence. As Senator Nunn put it: "the act raises questions
about the U.S. staying power in [the] midst of a crisis, thus making it harder for the United
States to secure the cooperation of our friends abroad.""'^ Senator Mitchell added:
[T]he War Powers Resolution . . . potentially undermines our
ability to effectively defend our national interests. . . .
[D]ebate over the resolution conveys the appearance of a
divided America that lacks resolve and staying power. The
resolution severely undercuts the President by encouraging our
enemies to simply wait for U.S. law to remove the threat of
further American military action.
Into the very situation that requires national steadiness
and resolve, the War Powers Resolution introduces doubt and
uncertainty.
This does not serve our nation. ^'''^
I could not have stated it more eloquently, Mr. Chairman; but, five years after that
statement was made, the War Powers Resolution is still very much on die statute books.
VI. Conclusion
Mr. Chairman, the time has come for Congress to recover from the effects of
Vietnam. The time has come for Congress to once again be willing to accept the political
responsibility and the risks that go with the job.
The time has come to set partisanship aside, and to understand that we are at a
critical juncture in history and — thanks in no small part to congressional irresponsibility —
we are blowing it, not only for ourselves and our children, but for the entire worW.
It may seem to be the safe approach to run to the hills at the first sign of trouble,
leaving the President alone to cope with crisis and coming down only when the game has
been decided — marching along side the President in victory, and solemnly shooting the
wounded and denying responsibility in defeat But American soldiers are dying because of
this unseemly quest for political safety.
">6/d. ai6175.
'O'W. «6178.
176
Statement of Prof. Robert F. Turner
3 March 1994, page 59
Perfa^s the War Powers Resolution has provided something of a safe-haven for
Members of Congress, but it has been at a terrible cost to the country and to the cause of
world peace and security. Too many in Congress have lost sight of the essential elements
of deterrence, and they have forgotten that the enemies of our nation and our values are
listening.
For that matter, our "friends" are listening, too; and after decades of watching
Congress "pull the plug" when the seas get a litde rough, not too niany wise men or
women arc anxious to get back in the boat with us.
Ultimately, if deterrence fails, we are going to be faced with the choice of allowing
the rule of law to be undermined or of rq>uichasing our national credibility with the lives of
our young men and women. Those stakes are too high to permit Congress to play the post-
Vietnam game any longer.
Mr. Chairman, I spent five wonderful years working for a Senator from Michigan,
and during that time I developed a great affection for the legislative branch as a national
institution. I strongly support its legitimate constitutional authority; but my emotional
attachment to the institution makes me all the sadder when I see it become dysfunctional.
During my years on the Hill, I also developed a deep respect for another former
Senator from Michigan, Senator Arthur Vandenberg; and I would leave you this morning
with a message he voiced in one of his last public speeches, a Lincoln Day address in
Detroit on 10 February 1949:
It will be a sad hour for the Republic if we ever desert the
fundamental concept that politics shall stop at the water's
edge. It will be a triumphant day for those who would divide
and conquer us if we abandon the quest for a united voice
when America demands peace with honor in the world. In my
view, nothing has happened to absolve either Democrats or
Republicans from continuing to put their country first. Those
who don't will serve neither their party nor themselves.^"'
108 Q^ud in CONG. REC. S 16375 (daily e<L 22 Sept 1976).
177
Mr. McCandless [presiding]. Thank you, Professor Turner. Let
me start with you with some basic questions here. You're a noted
constitutional legal scholar who has written extensively on national
security. Please tell us what specific steps, if any, Congress should
take to help the President solve the peacekeeping dilemma.
Mr. Turner. I think that Congress ought to encourage consulta-
tion with the President, ought to be supportive of the President. I
have a sense this President wants to listen to Congress, but I think
the thing you could do most would be to send a strong signal of
unity to the world. In this regard the position taken by Congress
may be the most critical element in demonstrating that the United
States is united in one voice behind keeping peace in the world.
I think it is in our interest to have the United Nations try to
keep peace, even in areas that may not seem, by themselves, to be
vital to our interests.
Shortly before the Korean War, there was a big debate in this
country; and we decided in early 1950 that Korea wasn't vital to
our security. Dean Acheson went before the National Press Club
and announced that, and even before that, Greneral McArthur said
essentially the same thing in Tokyo.
North Korea invaded South Korea in June, June 25, and all of
a sudden, the question changed. The question was not how impor-
tant is South Korea as a piece of territory, but how important is
the United Nations Charter and world peace? At that point we
came up with a different answer, I think the right answer.
I know you served there Mr. McCandless. I spent a couple of
tours in Vietnam, so I can relate to the experience. I think if Con-
gress will not start passing resolutions setting deadlines for deploy-
ments, or sending signals to the bad guys in the world that the
Congress is going to pull the plug if things get tough, we have a
chance of resolving some of these problems without having to send
in American men and women. Rather we can maintain peace just
by deterrence, because of the credibility we've established over the
years, in particular in the Gulf.
Mr. McCandless. I have a favorite term to describe something:
Marguerita Marching Society. From time to time, this image is pro-
jected from the United Nations relative to its ability to function,
and function in a way that is meaningful, timely, and accomplishes
its objectives, somewhat like Congress. There's a parallel there, I
might add.
What do you see as the primary cause of our current peacekeep-
ing problems?
Mr. Turner. I think there are several problems. That's too long
a question to do justice to in the time available. Just identify one
primary cause, I think there is a problem with the way we deal
with the United Nations. I think the United States has the ability
to play a strong leadership role and bring together forces in the
name of peace.
Let me give you an example — and I should footnote this to the
excellent remarks given by Zbigniew Brzezinski at an American
Bar Association conference in early December, when he discussed
the way we've mishandled the Bosnian situation.
He noted that prior to the Gulf war, the United States sent dip-
lomats to our European allies, we said, "Look, we've got a problem
178
here. We've decided to take action. We're going in. As our allies, we
assume you're going to go with us so we can get this thine done
in a multilateral way." Our allies said, "We're right behina you."
The concern that Brzezinski expressed — one that I share — is that
in Bosnia we've sent people around and we've said, "Well, we think
maybe there's a problem there, and we're troubled by this, and
maybe we're thinking about doing something, and we'd kind of like
to know what you think about it." And in that kind of a situation,
the international bureaucracy is going to say "no" every time.
And so one thing I think we need is stronger American leader-
ship; and, related to that, our allies have to believe that the United
States is going to stay the course. And every time we start setting
deadlines — whether Congress does it or the President does it — that
we're going to pull our forces out in 2 or 3 months if we haven't
achieved our goal, what we're doing is sending a signal to our allies
that the/d better not put their troops at risk in that situation, be-
cause the Americans are probably going to give up if the going gets
tough.
So I guess what I'm sajring is, what we need most of all is a
strong signal that this is a united America determined to play a
responsible role in the world — and prepared to pay the costs nec-
essary to do that. The irony is that if we can send that signal, it
will so enhance deterrence that the likelihood of our having to sac-
rifice American lives will decrease dramatically.
Mr. McCandless. One of the issues that all four of you have
talked about, and Mr. Luck, you take the position that article 43
agreements are something that you would advocate. Professor
Rostow, you're advocating that this not be the case. Can you ex-
pand a little bit on that informally as to why you feel they are, in
view of the thoughts that have been expressed by the other panel
members?
Mr. Luck. Certainly I'd be happy to comment on that. I think
that my view on article 43 is probably a minority view, not only
in this panel but probably among many students of the issue.
It's one of those things, like the United Nations military staff'
committee, which I also think should be revived and put to work,
that people through the cold war have sort of put away and they've
attached certain negative values to them. I think it is worth getting
some of these things out of the closet, looking at them and seeing
whether they make sense or not.
If one is to do military enforcement under the United Nations,
or under any alliance, for that matter, it's important to do it right
and to prepare properly. And that requires exercising together.
That requires some effort to have common training, common doc-
trine, common rules of engagement.
And I think if you had earmarked forces from various countries,
that, in fact, would work together on a year-round basis — officer
corps that would get together, that would have a common lan-
guage, a common doctrine, some effort at interoperability of equip-
ment, et cetera — that would be very useful.
Mr. McCandless. We're talking here, then, about probably ai
spinoff of the philosophy of NATO.
Mr. Luck. In which sense?
Mr. McCandless. A spinoff of the philosophy of NATO.
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Mr. Luck. Oh, NATO. I'm sorry. In a real sense, yes and I refer
to NATO in my testimony. The United Nations is not, strictly
speaking, an alliance, but if one thinks, for example, of Desert
Storm, or if one even thinks of the Korean conflict, if you had to
cobble together some kind of a coalition to go off and fight, and
then you had to work these different units together, it would be
better if you were working it on a regular basis.
Now, as I suggest, I don't think the United States should assign
one or two units as earmarked United Nations units. I don't think
the United Nations should have any kind of autonomous forces of
its own. The United Nations is a collection of member states, and
it provides a mechanism for those member states to work together.
If you had a proper militant staff committee functioning, if you
had that directly under the Security Council, not under the Sec-
retary General — he should not be involved in enforcement ques-
tions; he's not meant to be, under the Charter — I think you could
begin to create an attitude, a style, an infrastructure of cooperation
that could make a major difference.
I think in the case of the United States, article 43 should be ge-
neric. Generally, we should indicate the kinds of forces, but many
other countries, there will be particular units that they would want
to put forward, and we would want to know, others would want to
know what those units are going to be and how they would work
together.
So I advocate exploring it. It may be that it proves to be a dif-
ficult thing, but given that no nation has ever concluded an article
43 agreement, its a time to define it. And who better to decide
than the United States what article 43 should mean?
And I think, frankly, we should decide that it is not automati-
cally that these forces are called up. It should be according to na-
tional constitutional processes of decision, but make that clear. We
should put forward that kind of suggestion, negotiate it with the
other Cfouncil members, and show a little leadership. I think it
would be a useful thing to do.
Mr. McCandless. Any other members have any comment on
that you'd like to make?
Mr. Turner. Let me just make a quick comment. I testified be-
fore the Foreign Relations Committee on the article 43 issue in
September 1992 and I have not reprinted those views here; but I
think it's important not to get Congress formally involved in the
approval process. If you have a legal requirement that you can't
use those forces without Congress approving it first, you are reject-
ing a decision that the Congress made in 1945 when they passed
the United Nations Participation Act. They discussed this at great
length, and they said, 'These forces will not be credible if, before
you can use them, you have to go back and get special Congres-
sional approval."
Such a requirement would also set the stage for every other
country to say, "Well, vou can't have our forces, either, unless we
have some sort of a plebescite to approve each deplojmient."
Keep in mind that we have a veto on the Security Council. These
forces can't be used without the approval of Security Council, and
thus, U.S. interests, unlike that of most countries, are very well
protected — even if we enter into an article 43 agpreement — ^oy the
180
fact that our representative in the Security Council can block any-
thing we find unacceptable.
This is how I think we ought to deal with the question of com-
mand. I have no problem at all with Americans serving under the
command of a good British or Canadian officer. I can understand
not wantirg to be put under the command of a Third World officer
who got his job because his uncle is the minister of interior, or
something like that.
But those questions can be dealt with by the U.S. Representative
at the Security Council by virtue of the fact that we have a veto
and have to approve any arrangement.
Mr. McCandless. Professor, you had a comment you wanted to
make very quickly?
Mr. ROSTOW. Yes. I think it would be a great mistake to under-
take an article 43 agreement because it would give rise to the hope
that we would actually attempt to use the United Nations, the Se-
curity Council, and chapter VII as a serious basis for enforcement
actions.
And I think not only the experience of the last 50 years but the
nature of the problems and the nature of the relationship among
states means, quite apart from the issue of the veto, that article
43 and chapter VII cannot be — it's simply contrary to the nature
of the relationships and of the institutions involved — cannot be re-
lied upon for more than the peacekeeping function as an auxiliary
instrument of diplomacy.
To create false hopes is the worst thing we can do; the trouble
of deception is that one deceives himself.
Mr. McCandless. Thank you.
Mr. CONYERS [presiding]. Gentlemen, I will have to excuse my-
self again. My appointments are backing up on me. But first of all,
I'm very appreciative of all of your points of view that have been
brought here today, and I think this is an important hearing be-
cause we're reviewing mechanisms that are applicable to many
world events including Bosnia. And I'm glad our discussion has
been wide-ranging.
I wanted to get a feeling from the panel, and not to divert from
the legal considerations, but with reference to Haiti, it seems to me
that there could be a more constructive role for the United States
and the United Nations in restoring justice, which I would quickly
postulate is a national interest question for the United States.
There may be other avenues we could take in the rather unseemly
chain of events that have occurred in Haiti, that have frustrated
democracy in the most blatant, flagrant way.
I just wondered if each of you could give some indication of
whether you agree with this consideration that I laid before you.
Mr. RosTOW. Well, I strongly agree. I think the handling of Hai-
ti's tragedy has been a disgrace, and a disgp'ace for which we, in
large part, are responsible. The notion of putting an island under
an embargo and starving the people to death in order to force them
to take political action they don't want to take is — I can think of
no better word than disgrace. We ought all to be ashamed of our-
selves for being involved in it.
181
Now, I think that every legal code that I know about in the world
has a bankruptcy provision. I'm particularly familiar with it be-
cause I taught bankruptcy law for 5 or 6 years.
There are certain states which have a great deal of trouble in
governing themselves. I don't mean forever, but they do at given
times. They're overcome with famine. They're overcome with riot-
ing. They're overcome with civil strife. And the United Nations,
above all institutions, ought to be capable of intervening with the
common consent of the community in situations of that kind and
restoring, establishing effective states, which will have the consent
of the governed.
I think that's what Haiti needs, the protection of the world com-
munity, the Pan-American community, if you will, and intervention
and protection during a period of recovery.
The history of Haiti indicates that its current problems may be
very deep seated. It's been a tragic history, as we all know. But the
present course is not designed to fulfill any such goals.
Mr. McCandless. Let me, if I may, expand on that, with regard
to Haiti, because it's important, your comments, and I want to
focus on those comments.
The United States had armed forces in Haiti from, I think — was
it 1923 to 1935, give or take a year at each end — which, in a sense,
was addressing the issue, in terms of national policy, that you have
said you think is necessary to get Haiti started in the right direc-
tion.
Were we so premature then or with hindsight — we did that and
we weren't successful.
Mr. RosTOW. Well, we were successful in a way, but then it fell
apart when the Marines were taken away. The Marines built
schools. The Marines — ^you know, they had roads and schools and
infrastructure and the development of institutions. They weren't as
sophisticated then as we are now in nation building, with the expe-
rience of the AID programs after 1945, but it didn't work.
Well, it didn't work for very long. There probably were a good
many reasons for it. I wouldn't pretend to be an expert on the trag-
edy of Haiti. But it should be tried again. If it failed once, it doesn't
mean it has to fail forever.
That, I think, would be the humane, humanitarian, decent thing
to do, and it's a matter of great interest that there not be a can-
cerous running sore, certainly in this hemisphere.
Mr. CONYERS. Thank you so much. Mr. Luck.
Mr. Luck. I would not pretend that there are any simple an-
swers to Haiti, but it does seem to me that the international com-
munity and the United States in particular are more than a little
bit pregnant on that issue.
When you go in to monitor elections, to try to encourage the es-
tablishment of democracy in a country that has never known demo-
cratic, pluralistic government, I think there are some responsibil-
ities when that democratic leader is then overthrown.
We should think of this less as a repeat of a unilateral U.S. ven-
ture, as we had earlier in this century, and see whether there is
sufficient support from other countries for some kind of multilat-
eral effort.
182
Sanctions are ugly. Some sanctions work better than others. I
think one should see about the leakages that are currently in those
sanctions, in terms of why so much oil is getting througn the Do-
minican Republic. It shouldn't be impossible to make that an effec-
tive oil embargo and to really make a difference.
One also needs to look carefully at the humanitarian exceptions
that are supposed to be part of that embargo, to be sure that those
people who are most in need are getting help.
But it's important to recognize that what one hears from most of
the people on the ground, the Haitians themselves, is that they
would keep the embargo as a way of trying to overthrow the mili-
tary regime, but it has to be done in a way that is both intelligent,
that is as humanitarian as possible, and that gets to those people
you need to squeeze. I think you have to look at their foreign assets
and other things.
But to repeat the idea that somehow this is simply an American
problem, is not the way to go about it. But, at the same time, there
are those who have suggested recently that we have no national in-
terest in Haiti.
If we don't have an interest in an island so close to our shore,
where we have so much history and where the refugees are flock-
ing into Florida, it does seem to me, where are these people going
to draw the line? What interests do they see in the world?
I've heard the same thing with Bosnia: we have no national in-
terests in Bosnia. We have to have some interests somewhere. But
it does seem to me these are not just American interests; they are
multilateral, multinational interests, and we should get some part-
ners in this sort of thing and show that we mean business.
The thugs that run Haiti are not so mighty or so impossible to
do something with. I think the international community looks com-
pletely pathetic, and I think this administration has to question its
own resolve in this case and get serious about this question.
Mr. CoNYERS. I see I've got a subject in which you and Professor
Rostow are in agreement,
Mr. Luck, To some extent we are, yes,
Mr, CoNYERS, Professor Turner,
Mr. Turner. Let me say "Amen" to both of their remarks and
just make three quick points.
One, I think the United States can do something in Haiti. I think
it ought to be done multilaterally, either through the United Na-
tions or the OAS, which would be harder to jump-start but I still
would like to see that tried at some point.
I agree completely with Professor Rostow that economic pressure
both won't work and also that the way it's being done, just as hap-
pened, I think, in Iraq — it puts the pressure on the poor people
that have the misfortune of living under tyrants. The tyrants are
going to take what they need — they're going to go to Miami and get
what they want — while the poor suffer.
But also, to pick up on a theme I mentioned earlier, and that is
leadership, we could deter the tyrants in Haiti if we really had
credibility. We've lost a lot of that credibility by things like having
our elite forces chasing Mohammed Aideed around Somalia, break-
ing in to a meeting of a United Nations group, and so forth.
183
We've got a serious problem there, and we need to reestablish
that credibility. But if you want to talk about a failure of leader-
ship, when the United States first sent ships into Port-au-Prince
harbor we announced in advance that if there was any resistance,
we would pull them out. I think that was done so as to assure Con-
gress there was no risk there.
I can't think of a policy more calculated to promote resistance
than to announce in advance, "We're sending forces in, but if any-
body shows up on the dock with a gun, were going to withdraw
right away." That, of course, is exactfy what happened. I think the
word "stupid" is a good way to characterize such a policy.
I think we have to focus on American leadership, and sometimes
that means being firm and understanding we may have to take
some casualties. But we ought to be si^nialing the other side that
they're going to take a lot more casualties if they refuse to cooper-
ate with the international community.
Mr. CoNYERS. I appreciate that response. Let me get Mr. Bolton
and then close with Professor Rostow on my question.
Mr. Bolton. Thank you, Mr. Chairman. I think the most impor-
tant thing to note about Haiti is the failure to resolve that situa-
tion through the Organization of American States. The United Na-
tions Charter contemplates that regional organizations should have
a principal role in reducing threats to international peace and secu-
rity.
Unfortunately, regional organizations have not done well over
the years. The OAS probably was the best example one could have
imagined as a regional organization to handle something like the
problem in Haiti, and yet the OAS failed.
I think that continuing to resort to the United Nations, without
trying to make organizations like the OAS more successful, simply
increases the likelihood of United Nations failures in the future.
And I think that's something that, while it may go beyond the pre-
cise scope of this hearing from a policy point of view, is something
that we should be pajnng more attention to, that there are ways
of strengthening regional organizations to deal with some of these
problems, rather than simply dumping everything in the lap of the
United Nations, when it's already overloaded.
Mr. Rostow. I was going to wind up with two comments on
what's been said in the last 10 minutes or so. One is Dr. Luck said
something about sanctions, and of course we see one impact of
sanctions in Haiti.
But sanctions — we believe — some mystical article of faith in the
American soul is that economic sanctions can work. There's a pro-
fessor in the University of Maryland named Mancur Olson who's
made a study of this, and he documents what's been my impres-
sionistic view for a long time; namely, that sanctions never work
and can't work. They certainly can't work in a place that's sur-
rounded by smugglers, like Yugoslavia, expert smugglers.
But we keep believing. The only occasion I know where economic
sanctions produced a result, not exactly the result that people who
imposed them thought well of, was in the case of Japan in the
1930's where we put the screws on Japan with scrap metal and
then finally petroleum products, and we got Pearl Harbor. And we
ought to think about that.
184
The other totem in closing, Mr. Chairman, is that of
multilateralism — certainly it's a good idea. Certainly we don't want
to do everything alone. And certainly, where the community can
visibly cooperate, even if only symbolically, it has a soothing effect
on the national soul.
But we have an enormous responsibility for the peace, simply be-
cause we're big, and no one else can do it. In law, duty arises from
circumstance, and that duty is if something terrible is going on and
it's a threat to the peace, that peace is our interest.
And we can do it alone, too. There's nothing disgraceful about it.
Mr. CoNYERS. This has been a very helpful aside, but still related
to our principal subject matter, and our committee may be looking
at these questions again, and I'm very grateful to you.
I'll turn this back over to Mr. McCandless.
Mr. McCandless. I have one other area, if I may, Mr. Bolton,
and then I would like to submit for the panel questions. We have
used up quite a bit of your time.
Mr. Bolton, I want to refocus on chapter VII and the fact that
you commented in your statement that it does not and has not
worked and that it does not seem possible to fix it.
What would you perceive as being a possible way by which you
might change your opinion on this issue?
Mr. Bolton. It would be hard to do, I'm afraid. The military
structure envisioned in chapter VII, which goes well beyond article
43 agreements and encompasses the idea of a military staff com-
mittee, was modeled on the joint British-American command dur-
ing World War II.
And the idea, at the time of the writing of the Charter, was that
the five permanent members of the Security Council would form
that kind of joint staff and would essentially be responsible to pro-
vide the military muscle, as well as the political direction.
I just don't see that as happening in the near future, and I would
disagree with Ed Luck on that point. I just don't see officials from
the Pentagon sitting down with their counterparts from Moscow
and Beijing and discussing a joint United Nations military doc-
trine. I mean, I don't see it any time in the near future.
And what that means is that chapter VII, as written, simply is
not going to work until those circumstances change. One possibil-
ity, of course, would be to amend the United Nations Charter. I
would be very worried about that because once you open the Char-
ter for amendment, a whole range of other possibilities become
open for amendment, as well — expanding the number of permanent
members, abolishing the veto power, a whole range of issues like
that.
I think, therefore, what we really need is not so much a rewrite
of chapter VII as a better political consensus in this country on
how we want to use the United Nations as part of our foreign pol-
icy. And I think if we had that consensus, which we clearly do not
at this point, a lot of these operational issues would be a lot less
significant.
Mr. McCandless. Thank you. Let me thank all of you members
and those who have been involved for your patience in this 4
months off again, on again, Flanigan-t3T)e situation, and fi-ankly,
your willingness to put aside a lot of your personal concerns to con-
185
tribute to this subject, which I consider to be of certainly major na-
tional and international significance.
We get philosophical and we say if Congress would do this, we
could solve this, and so on and so forth, and I can't agree with you
more. The only thing that we have here is an imperfect world that
we're still trying to find solutions to, and if you get discouraged
sometimes, I guess the best way to look at it is at least we haven't
had anything in the way of a major war for a while. And maybe
that's progress.
But in my mind, the United Nations was designed, back in 1945,
to try to address the problems of the world and was called the
world's police force. It was designed to be the world's police force
at one point, as I remember some quotation.
And I reflect back to my experience in China, where we still had
the international settlement in Shanghai and we had various sec-
tions of the international settlement under the jurisdiction and the
sovereignty of the Nation that was represented there.
And from time to time, we couldn't even get along, as people who
had just defeated Japan, to manage a very simple multiethnic com-
munity. And I'm saying, by golly, if we couldn't do that in 1945,
and tne United Nations comes along and says we're going to do
that internationally, well, maybe they've found some things here
that we need to take a look at.
I guess the point of all this in the sea story I just finished telling
you is that the United Nations is the best thing that's come along
so far to try to put a cap on things that could get out of hand. And
my interest ana the interests of those of the panel there and the
subcommittee is if it isn't broke, let's not fix it, but it looks to us
like it needs some revising here or revising there to give it more
positive direction, even though fi-om time to time, individuals with-
in the framework of our political structure, consciously or uncon-
sciously, at a critical more, fire missiles at it.
And tnose are the areas that bother me. And how can we do this?
And that's why we asked you to come, and your patience, for finally
we were able to make it.
We're going to be building a record here upon which, hopefully,
we can develop some specific recommendations. And we will keep
the record open until March 17 for questions from both sides, if
that's agreeable to you.
Thank you again for appearing. The meeting is adjourned.
[Whereupon, at 12:30 p.m., the subcommittee adjourned, to re-
convene subject to the call of the Chair.]
APPENDIX
Material Submitted for the Hearing Record
CHAIRMAN CONYERS' FOLLOWUP QUESTIONS
FOR
CONRAD HARPER
Questions from the Chairman:
(1) While essential peace operations terminology is
gradually being defined in scholarly publications, there does
not seem to be a universal understanding of such terminology.
For example, "peacemaking," "peacekeeping," "peace
enforcement," and "aggravated peacekeeping" take on different
meanings depending on who is using the terms (e.g., U.N., NATO,
other nations, JCS, U.S. military services). According to U.S.
military officials, this lack of consensus is particularly
significant at the operational level and may result in mission
confusion. However, according to several military advisers
from other nations, terminology is less relevant. To them,
consistency in terminology seems to be more important at the
political level. At the operational level, ensuring a
consistent understanding of the rules of engagement is most
important .
-- Chapters VI and VII of the UN Charter are used as the
basis for authorizing peacekeeping missions, yet there is
no mention of peacekeeping as a U.N. function. To what
extent should peace operations terminology be defined,
clarifi-ed, and standardized for use within the United
States and the international community, including the U.N.?
— Should the Charter be revised to fully include and
define the term "peacekeeping"?
A. As I stated in my testimony, it is not legally necessary
to define these terms. The mandate of the Security Council for
each operation defines its scope and character and may
establish further parameters of the mission for the operation.
These terms do not appear in the relevant provisions of the
U.N. Charter or the U.N. Participation Act, nor have they been
used in Security Council resolutions to define the specific
mandates of peace operations. For these reasons, definition of
these terms is not necessary as a legal matter, nor would it be
worth the effort and political resources that would be needed
to amend the U.N. Charter for this purpose.
Nonetheless, it is useful for other reasons to have a
common understanding of the meaning of these various terms.
That is why I included in my testimony our understanding of
these terms in the context of current policy discussions.
(187)
188
(2) Article 47 of the U.N. Charter provides for the
establishment of a "Military Staff Committee (MSC) to advise
and assist the Security Council on all questions relating to
the Security Council's requirements for the maintenance of
international peace and security, the employment and command of
forces placed at its disposal" and "shall be responsible under
the Security Council for the strategic direction of any armed
forces placed at the disposal of the Security Council."
It has been widely reported that the peacekeeping and peace
enforcement operations in Somalia and Bosnia have suffered due
to failure of strategic planning and effective agreements on
command and control.
— What is the Administration's position on activating the
Military Staff Committee to provide these functions and
others as called for in the Charter?
A. Although Article 47 of the U.N. Charter created the
Military Staff Committee, that Committee has been generally
inactive. Efforts to coordinate U.N. peacekeeping activities
in recent years have not focused on activating the Committee so
much as creating effective mechanisms for cooperation among
troop-contributing countries.
I understand that the United Nations, with the full support
of the U.S. Government, has taken steps to institutionalize
cooperation among, and briefings of, such contributing
countries. In addition, the U.N.'s efforts to coordinate
peacekeeping operations through creation of a 24-hour command
center in New York have been a positive achievement. In our
view, it is not necessary to use the Military Staff Committee
mechanism in preference to other initiatives.
(3) In his September 24, 1992 testimony before the Senate
Foreign Relations Committee, R. James Woolsey, then Chairman of
the United States Association-USA panel on collective security,
noted that troops deployed under Article 43 would not be
"peacekeepers", but should be ready to "fight and win" when
called upon to enforce Security Council demands.
— If the United States negotiated terms and conditions for
participation in a U.N. rapid deployment force, what
provisions should DOD require with regards to command and
control?
— Also, should DOD recommend that the United States
negotiate an "opting out" provision enabling the U.S. to
withhold earmarked units?
189
- 3 -
A. These are basically policy and operational, rather than
legal, questions. As Secretary Christopher stated, we do not
exclude the possibility of an Article 43 type of force down the
road but at this point it seems quite remote. Under these
circumstances, I would prefer not to speculate on the terms and
conditions DOD might require for such an arrangement.
(4) Section 7 of the U.N. Participation Act of 1945 limits
the President to detail 1,000 members of the armed forces to
the United Nations in a noncombatant capacity for actions "not
involving the employment of armed forces contemplated by
Chapter Vll" of the U.N. Charter.
During various periods of deployment for UNOSOM II, the
U.N. mission in Somalia, United States forces under U.N.
command numbered over the 1,000 - person ceiling.
— Since UNOSOM II was a mandated Chapter VII mission,
under what authority were these U.S. troops deployed?
A. You correctly note that UNOSOM II was, and remains, a
mandated Chapter VII mission. The provisions of Section 7 of
the U.N. Participation Act are accordingly not applicable to
this deployment. As I indicated in my testimony, however.
Section 7 is not the only authority for the deployment of U.S.
forces to participate in U.N. peace operations. Other
authorities include Sections 552 and 628 of the Foreign
Assistance Act and the President's independent constitutional
authority, as Commander-in-Chief of the Armed Forces and as
Chief Executive with responsibility for the conduct of U.S.
foreign affairs. This constitutional authority was utilized
for the deployment of U.S. forces into Somalia by Presidents
Bush and Clinton, as both stated in their reports to Congress,
and continues to be the basis for the participation of
contingents of U.S. Armed Forces in UNOSOM II. Following the
intensified fighting in Mogadishu in the late summer and fall.
Congress approved the use of U.S. Armed Forces in Somalia for
certain purposes through March 31, 1994, and for more limited
purposes thereafter, in Section 8151(b) of the 1994 Department
of Defense Appropriations Act. (In addition, the United States
has made available a number of U.S. military personnel under
Section 628 of the Foreign Assistance Act to serve in the
UNOSOM II headquarters.)
(5) In the Secretary General's June 1992 report, "An Agenda
For Peace," he acknowledged that mandates for peacekeeping
missions must be practicable. That is, to be successful,
mandates must be within the U.N. operational capability and
supported politically by all parties to the dispute.
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4 -
While the results of the elections in Cambodia were
impressive, the U.N. Transitional Authority in Cambodia (UNTAC)
labored under a peacekeeping mandate that was ambiguous and
that stretched the mission both operationally and politically.
Much of the same can be said regarding the current situation in
Somalia and Bosnia.
— What is the State Department and U.S. mission to the
U.N. doing to provide clear and unambiguous peacekeeping
mandates, which are widely supported by the international
community, before fiscal and human resources are committed?
A. The State Department and USUN are both acutely aware of
the need for clear and unambiguous peacekeeping mandates that
enjoy the widest possible support of the international
community. This need was emphasized in the Administration's
review of peacekeeping policy. In the Security Council,
Ambassador Albright has been insisting that tough questions be
satisfactorily answered before U.N. peace operations are
established or renewed. For our part, the lawyers in both the
State Department and USUN pay careful attention to this aspect
in advising U.S. officials who help to negotiate the mandates
for U.N. peace operations. Having said this, however, I would
add that I believe events in Somalia, Bosnia and Cambodia were
determined to a much greater degree by the hard realities of
the situations in those countries than by any ambiguities in
the terms of their mandates.
(6) The Secretary General and others have noted that the
United Nation's ability to implement a Security Council's
decision to establish a peacekeeping mission is becoming
increasingly more difficult due in part to the lack of start-up
funds. The independent Advisory Group on "Financing an
Effective United Nations", chaired by Paul Volcker and Shijiuro
Ogata, recommended the establishment of a $400 million
revolving fund to finance the start-up of peacekeeping
operations .
— Is the Administration prepared to support this
recommendation?
— If so, at what level?
-- And if not, how would the Administration provide for
peacekeeping start-up costs?
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A. I understand that a Peacekeeping Reserve Fund currently
exists at the U.N. but has been depleted. I am told that we
support the expansion of this fund through voluntary
contributions to a level of $500 million but have not
determined what any U.S. contribution toward such a fund should
be. More generally, the question of financing for U.N. peace
operations has been an important focus of the Administration's
policy review and of the continuing consultations with Congress
by Administration policy officials.
(7) Recent participation in U.N. and other multi-national
peace operations have generated lessons learned on a
political/diplomatic, operational, and tactical level. The
effectiveness of future operations could be enhanced by the
incorporation of these lessons learned into high level
planning, as well as into the doctrine and training for the
military services.
— How are lessons learned from recent participation in
^ peace operations being incorporated into plans for future
participation in other such operations?
A. Your question is an important one but is of an
operational and policy, rather than a legal, character. It is
a question that has received considerable attention in the
Administration's review of peacekeeping policy and I would
refer you to the policy officials who have been dealing with
this and similar issues in their consultations with Congress.
(8) U.N. officials have noted that the United States has
been slow to respond to U.N. requests for help that have been
based on U.S. suggestions. They stated that the U.N. will
accept any level of participation from the United States;
however, specialized skills and capabilities are particularly
important since other nations aren't able to provide them.
Military advisers from various allied nations maintain that the
United States, as a permanent member of the Security Council,
has the responsibility to participate on every level of a peace
operation. They stated that most importantly, the U.S. must
"buy into" operating under and with the United Nations.
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6 -
— How have United Nations and allied perspectives been
considered when determining the appropriate role for the
United States in peace operations?
A. As with respect to the previous question, this one
likewise is important but is of an operational and policy,
rather than a legal, character. This is a matter that has
received considerable attention in the Administration's review
of peacekeeping policy and I would refer you to the policy
officials who have been dealing with this and similar issues in
their consultations with Congress.
(9) Military forces composed of multi-national troop
contingents must be capable of operating cohesively, thus
achieving force interoperability. Key success factors in
achieving this include: 1) having effective standard operating
procedures and equipment; 2) uniform procurement, logistics,
and communications systems; and 3) joint training.
Most military experts assert that U.N. peacekeeping and
peace enforcement operations can only be successful if major
military powers, including the U.S., play a significant role in
these elements that ensure force interoperability.
— Under Article 43, is DOD prepared to recommend that we
play such a role?
— If yes, at what point does our participation in
peacekeeping missions have a negative impact on our overall
force readiness capability.
A. I agree entirely that cohesive operation and force
interoperability are important considerations in successful
multilateral peace operations. These factors have been the
focus of considerable attention during the Administration's
policy review. These are, of course, policy and operational
questions which I would refer to those Administration officials
who have been dealing with them in their consultations with
Congress .
With respect to the possible use of Article 43, as I
indicated in my testimony, this is a policy, rather than a
legal, question. As Secretary Christopher has stated, we do
not exclude the possibility of an Article 43 type of force down
the road but at this point it seems quite remote.
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7 -
(10) Except for the combat forces in Macedonia, part of the
U.N. Protection Force in the former Yugoslavia (UNPROFOR) , the
United States has not allowed its combat forces to be placed
under the operational control of a non-U. S. commander in a U.N.
peace operation. In Somalia, for example, U.S. non-combat
forces are under the operation control of Lt . General Bir, the
U.N. force commander, but U.S. combat forces are under the
operational control of U.S. commanders. U.N. officials, as
well as foreign military advisers, believe that this dual
command structure has resulted in confusion over who has
command and control of U.S. forces and under what circumstances,
— Under what circumstances should U.S. military forces be
placed under the operational control of the United Nations?
A. The President has constitutional authority to place
units of the U.S. Armed Forces under the temporary operational
control of foreign commanders, while retaining ultimate command
authority over them. The question of the circumstances under
which U.S. forces should be placed under such temporary
operational control of foreign commanders in a U.N. peace
operation has been examined in considerable length in the
Administration's policy review of peacekeeping. It is
basically a policy and operational question, rather than a
legal question, and I would refer you to the Administration
policy officials who have been dealing with this question in
their consultations with Congress.
(11) Many of the capabilities required for peace
operations, such as combat service and combat service support,
lie in the reserve component. Additionally, many special
operations skills, such as civil affairs and psychological
operations, also are found primarily in the reserves. Not only
are these skills frequently utilized in peace operations, they
are also needed for traditional military operations in support
of the national military strategy. A number of options are
being discussed as ways to reconcile this situation.
A recent decision to send members of the Virginia Army
National Guard to the Middle East as part of a peacekeeping
force represents a shift in military thinking. This is the
first time that the U.S. has ever employed reservists in a
peacekeeping operation. About 400 soldiers from Virginia and
Maryland will serve -- following six months of training — in
the Sinai Desert.
— Is this change in military thinking the wave of the
future?
— Can we expect additional National Guard units to be
deployed in a peacekeeping capacity?
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A. I would refer you to the Department of Defense for the
answers to these operational military questions.
(12) Last year President Clinton nominated Morton Halperin
for the newly created position of Assistant Secretary of
Defense for Democracy and Peacekeeping. Mr. Halperin has .^ince
withdrawn his name from consideration for this position and the
position seemingly will disappear.
— Will there be an Office of Democracy and Peacekeeping at
the Department of Defense, especially when the President
has requested, and the Congress has approved considerable
resources for DOD peacekeeping operations?
A. Once again, I would refer you to the Department of
Defense for answers to these questions about DOD's
organizational structure.
195
CHAIRMAN CONYERS* FOLLOWUP QUESTIONS FOR JOHN BOLTON
1) You say in your testimony that "too often the distinction between
'peacekeeping' and 'peace-enforcement' has been blurred, with often
tragic consequences."
-- In light of this, do you think that these terms need detailed
clarification to help avoid such consequences?
2) You indicate that you fully endorse the criteria President Clinton
laid out in his speech to the UN, along with the Presidential Decision
Directive which embodies these guidelines.
-- Do you envision that these criteria be used as part of our
legal framework in helping to define our role in UN
peacekeeping operations?
- Are you suggesting that these criteria could be in lieu of a
legislative fix to the UN Participation Act?
3) As a result of the easing of Cold War tensions, the nature and size
of UN peacekeeping efforts have increasingly become more complex.
Yet, the legal framework and structures have remained virtually the
same for the last forty years.
-- With this in mind, aren't we asking the UN to accomplish
too much as it works within an outdated structure built for a
different era?
4) You appear to give considerable importance to U.S. presidential
leadership as a leading factor in determining success in UN operations.
- What do you envision as the role of Congress vis-a-vis UN
peacekeeping efforts?
196
5) You mentioned the "finely-honed C31 structures of NATO."
-- Please elaborate on these structures. How has NATO been
able to create such a mechanism and the UN has not?
6) You testify that the existing Chapter VII structure does not, and
has not worked, and it does not seem possible to fix."
~ Without a legal structure for the post Cold-War era, how
can we then expect the UN to effectively respond to post
Cold-War conflicts?
7) You say that the UN legal framework is not working, that it has
never worked and that you do not recommend changing it.
- Are you saying the United States should not participate in
UN peacekeeping activities?
8) You seem to be suggesting that opening any portion of the Charter
to amendment would essentially be opening up a Pandora's box,
because member-states would call for changes to the entire Charter.
For example, this action could lead to a recomposition of the Security
Council.
~ Aren't we deluding ourselves by thinking that by ignoring
our concerns, we can avoid the concerns raised by member
states as well?
~ Wouldn't an honest and open debate help to clarify
everyone's concerns and perhaps create a legal framework
which more accurately reflects the political and economic
realities of the post Cold-War era?
197
9) You testify that the original intention of the peace-enforcement
mission in Somalia was to be "handed back quickly." However, you say
in your article Wrong Turn in Somalia, published in Foreign Affairs, that
"a distinct minority with the Bush Administration was skeptical. ..concern
that it would be much easier to get into Somalia than to get out." It
appears that this distinct minority was accurate in their assessment and
the Bush Administration was at best naive to think that they could
remove troops so easily once engaged.
- In retrospect, how realistic was it to believe that a quick
job could be accomplished in this war ravaged country?
10) Some experts agree that US troops entered Somalia a year too
late. Further, some concur that it was inappropriate for a lame-duck
president to engage troops in a foreign civil war a month before leaving
office. This action, they say, tended to cloud the critical issues by
suggesting political motivations, setting a bad precedent and also
hampering the diplomatic process.
-- What are your thoughts on this?
11) You have stated that the UN's adoption of Resolution 688 in
response to the refugee situation in Iraq resulting from the Persian Gulf
War s«t a precedent that "left the principle of UN nonintervention (in
internal strife) substantially weakened."
Please explain this statement.
198
1 2) You state that the text of the UN Charter is unclear as to when UN
intervention in a domestic conflict is justified.
~ Please clarify your position on this.
13) The Security Council declared that a member governments'
repression of its own people was a threat to international peace and
security.
- Is it not in the interest of the United States to stop such
repression, or is it only U.S. interest when oil is at stake?
~ Should national interest be defined within the legal
framework or be fought out ad hoc in the political arena?
199
JOHN R. BOLTON
9107 FERNWOOD ROAD
BETHESDA, MARYLAND 20817
March 22, 1994
Ms Cheryl Matcho, Clerk
Legislation and National Security Subcommittee
House Committee on Government Operations
B-373
Raybum House Office Building
Washington, DC 20515
Dear Ms Matcho
Enclosed please find my responses to the written questions attached to Chairman Conyers'
letter to me of March 9, 1994 Please let me know if there is anything else you need I can be
reached by phone at (301 ) 469-6903
6»^
200
RESPONSES OF JOHN R. BOLTON
TO OUESTIONS FOR THE RECORD
AFTER THE HEARING ON U.N. PEACEKEEPING
BEFORE THE HOUSE COMMITTEE ON GOVERNMENT OPERATIONS
1 . I believe that detailed clarification of the differences between the terms
"peacekeeping" and "peace enforcement" would be very helpful, both in terms of
diplomatic decision-making and in terms of domestic American political
consideration of the proper uses of these options U.N peacekeeping has a long
tradition, and a generally well-understood meaning already. Exactly the opposite
can be said about peace enforcement. A better understanding of the differences
between the two is not simply a semantic exercise, but has important diplomatic and
military consequences.
2. President Clinton's criteria could actually be incorporated m the U.N.
Participation Act, although whether they would have any "teeth" remains to be seen.
As I noted in my prepared testimony, the Administration has not even itself adhered
to these criteria. For example, there has been considerable talk in recent months of
a vastly expanded U.N. peacekeeping force in Bosnia if a settlement is reached.
This force ~ perhaps as many as fifty thousand troops, of whom approximately half
would be Americans ~ would be expected to remam for a lengthy penod. I have
seen estimates that this force might be in Bosnia for decades, with no clear end point
in sight. A commitment of Americans to such a such an operation would obviously
violate one of the President's criteria: that there be a clear disengagement strategy
Thus, the Committee would have to determine how to make these critena
work in practice, an always very difficult problem in relations between the
Executive and Legislative Branches. Requiring prior Congressional approval of
American troop participation in U.N. peacekeepmg or peace enforcement operations
would at least provide an opportimity to debate these issues publicly.
3. I believe that the U.N. has been overioaded with peacekeeping requirements.
201
both from political and operational perspectives. Politically and diplomatically, it
has been too easy to address a threat to international peace and security (or,
increasingly, domestic ethnic and political conflicts) by referring it to the Security
Council. This approach allows interested governments to say that "the United
Nations" is handling the problem, thus, in effect, relieving them of any responsibility
for finding a solution. As a result, the U.N.'s peace making ability (e.g.. negotiation,
mediation and "good offices") has been strained beyond its limit.
Operationally, so many new peacekeeping operations have been created in
recent years that the fragile command-and-control structures in the Secretariat have
also been pressed beyond their limits. Absent some strategy for solvmg these
problems, without causing a host of new ones that would arise by attempting to
amend the U.N. Charter, there is every prospect that the U.N. will remain
overloaded.
4. As noted above, 1 believe that there could be congressional participation in any
decision to contribute Amencan troops to U.N. peacekeeping operations.
There is, of course, also the appropriations power. During the mid-1980's.
Congress signaled its displeasure with the U.N. system by withholding part of the
United States' assessed contribution to the U.N. itself and to several of the
specialized agencies that are part of the U.N. system. 1 believe that these
withholdings made it clear to other member governments that the US would no
longer tolerate the anti-western (and specifically anti-Amencan) biases that had
become so prevalent in the U.S. system. The withholdings also sent a strong
message about Congressional dissatisfaction with the inefficiency, mismanagement
and waste all too prevalent in U.N. agencies. While these problems were by no
means solved by the end of the Reagan Administration, the President believed that
sufficient progress had been made that he proposed a six-year program by which the
U.S. would repay the arrearages that had been accumulated because of the
withholdings. President Bush continued that program.
In the peacekeeping area, one possibility would be to appropriate no more
202
than 25 percent of the assessed peacekeeping costs, the same share that the U.S.
now pays for the regular U.N. budget. Currently, the Perm Five pay more than their
regular shares for peacekeeping, with the U.S. share now slightly over 31 percent.
This system is unfair and burdensome, and should be eliminated, as both Presidents
Bush and Clinton proposed. Congressional withholding of the difference between
the two percentages might induce action in the General Assembly to revert to the
regular budget assessment that was used during the initial U.N. peacekeeping
operations, such as UNTSO.
5. Over the years, through countless military exercises, military and diplomatic
consultations and training, NATO's diverse members have forged a remarkably
efficient and effective military command structure. This has not always been easy,
and there have unquestionably been difficulties (such as whether to deploy Pershing
and cruise missiles on European soil dunng the 1980s). Nonetheless, after years of
experience, the C31 structures of NATO are without parallel. Although not NATO
operations perse, much of the NATO experience was of considerable importance
during the Gulf War, and in the humanitarian relief efforts and peacekeeping
operation in Bosnia.
Given the ad hoc nature of U.N. peacekeeping operations until now, it comes
as no surprise that the U.N.'s C31 structures do not compare with NATO's. Whether
and to what extent the U.S. wishes to create such refined structures m the U.N. is
not so much a logistical or operational question as it is political. Do we want the
U.N. to have all, or nearly all, of NATO's capabilities? Would we prefer to keep the
U.N.'s capabilities more narrowly defined, to be used as appropriate, rather than
used automatically? These policy questions must be answered before the question
of military capabilities can be addressed.
6. Despite the problems inherent either in retaining Chapter VII as is, or in
attempting to rewrite the U.N. Charter, I believe that the U.N. can respond
effectively to post-Cold War conflicts in certain circumstances Most importantly,
the Security Council ~ and specifically the United States - must set priorities for
what It expects the U.N. to accomplish. The Security Council's mandate, under the
203
Charter, is to deal with threats to and breaches of "international peace and security,"
and no more. While reasonable people can disagree on the precise limits of this
term, one thing seems certam: it does not encompass every military clash around the
globe. By limiting the Secunty Council's role to that set forth m the Charter, some
progress might be made in lightening the U.N.'s burden, thus raising the prospect for
actually resolving existing disputes.
Moreover, concentration should focus on resolving long-standing disputes
such as the Western Sahara and Cyprus, which have been stalled for years. One of
the dangers of creating peacekeeping forces outside of the context of a clear
political process to resolve the underlymg dispute is that the peacekeeping force will
never terminate. This is one of the great dangers of what is currently being
discussed concerning the former Yugoslavia. If the U.N. cannot usefully be
involved in a central role in settling disputes, then consideration should be given to
ending peacekeeping operations, such as happened with UNIIMOG (Iran-Iraq) and
UNGOMAP (Afghanistan) when their limited mandates have expired.
7. I believe that the United States should contribute troops to peacekeeping
operations when it suits our interests to do so. For example, I think it makes entirely
good sense for U.S. observers to be present in UNIKOM (Iraq-Kuwait), having
fought a war in large part to make that border secure. TTie key point is the
workability of the overall political context into which US and U.N forces are
asked to deploy.
1 also believe that U.S. contribution of logistical support (such as airlift
capability) and other "back-stage" roles is generally appropriate, especially when the
in-kind costs of such support can be applied against the U.S. assessment for
peacekeeping. Such a process thus reduces the hard-dollar amounts that the US
pays mto the U.N. budget.
8. First, I worry that "an honest and open debate" on amending the Charter might
well produce acnmony and divisiveness that could only weaken the Secunty
Council and the U.N as a whole. I do not see such a result as bemg in anyone's
204
advantage.
Second, I am not at all sure that "the political and economic realities of the
post-Cold War era" are at all clear at this point. I agree with President Clinton's
observation that the only comparable period in recent history is the aftermath of
World War II, when the shape of the post- War era was far from clear. Although
some were more prescient than others in predicting the onset of the Cold War, it
was some time before the world's new realities and major American mitiatives ~
such as the Marshall Plan, NATO and the other anti-Communist alliances, the use of
military force in Korea, the impotence of the Security Council and related matters ~
took shape. Therefore, I see no reason to rush to reopen the Charter before we
better understand exactly what the shape of the post-Cold War world will be.
Third, for all of the criticisms that I have made, I think the Security Council,
and the Perm Five in particular, have established a workable pattern of operations.
While I have not agreed with every Council decision, 1 would not like to see the
process that has been painfully established since 1989 disappear. I fear, however,
that the process might be an early casualty of a wide-ranging debate on amending
the Charter.
9. I was part of the "distinct minority" I wrote about in Foreign Affairs concerning
Somalia. I would not, however, characterize the Bush Administration decision as
"naive," because it was taken only after a number of hard-headed judgments.
Rather, I would say that we misjudged what would happen after the Bush
Administration ended, and that certainly provides an important lesson for
end-of- Administration operations of this sort.
I would say also that there were elements of the bureaucracy which
welcomed President Bush's decision precisely because of the precedent that it set.
Once American forces were deployed in Somalia, it became much easier to argue
that their mission should be continually expanded. In short, there were many who
had a completely different long-term agenda than President Bush had, and the initial
deployment of American forces gave them all that they needed to pursue that agenda
205
once the Bush Administration ended.
Thus, whatever the merits of President Bush's initial decision, I think that the
Somaha experience really does tell us that "it's easier to get in than to get out." Any
future American President should never forget this point.
10. I can assure the Committee that I saw no political motivations whatever in
President Bush's decisions about Somalia. As noted above, the decision to deploy
does raise questions about how to conduct policy during any Administration's
lame-duck period after the election, but these problems are by no means confined to
diplomatic and military issues.
As to whether the United States was a year too late, 1 would say that we may
have been too early. A more forceful U.N. presence, combined with more active
U.N. diplomacy might well have made a difference. 1 would also say, however, that
Somalia is a good example of problems that simply are not susceptible to quick,
rational solutions. This may sound like a hard judgment, and no one wants to
excuse the terrible human tragedy that had unfolded in Somalia, but it is hardly
alone in recent history. Even now in the Sudan, a similar tragedy is taking place.
Liberia is another recent example. Civil war continues in Afghanistan, with many
civilian casualties. Yet no one senously argues that the U.S. should intervene in all
of these areas.
1 1 . Although there was a clear basis in the Charter for the Security Council to
adopt Resolution 688 (the threat to international peace and security caused by Iraq's
repression of its own people), the implications went beyond the text itself The
Resolution was adopted against a world-wide discussion of a concept called "the
nght of humanitarian intervention, " the idea that the Security Council could
intervene in a nation's internal affairs for humanitanan purposes. Many saw the
adoption of Resolution 688 as the first important international affirmation of this
"right of humanitanan intervention," and urged that similar actions be taken
elsewhere.
206
CHAIRMAN CONYERS' FOLLOWUP QUESTIONS
FOR
EDWARD LUCK
1) Please tell us a little bit about your organization regarding its history, purpose,
and membership. Would you say it's a political or partisan organization?
The United Nations Association of the USA (UNA-USA) traces its history to 1943.
when President Franklin Roosevelt called for the creation of a citizens group to build
understanding and support for US participation in the soon-to-be- founded United
Nations. Today the private, non-profit Association is the nation's leading center for
public education and policy research on the UN. With 31,000 members in 176
chapters and divisions around the country, along with relationships with 132 affiliated
voluntary organizations, UNA-USA has the largest public outreach network of any
foreign policy organization in the country. As a non-partisan Association funded by
private sources rather than by the US government or the United Nations, UNA-USA
serves as a citizens think tank, with a wide range of policy research programs
dedicated to finding ways of strengthening the United Nations and the US role in it.
2) You mention the recently published binational study which addresses many of the
same issues we will be discussing today.
—Please elaborate on the binational study's conclusions, and on who participated
in this study.
(My understanding is that the recent binational report. When Diplomacy Fails:
Russian-American Proposals for United Nations Military Action, will be printed in the
record of the hearing, so I assume that it does not need to be summarized here. If
you still need a brief survey, however, you could use the following.)
In mid-1993, the United Nations Association of the USA joined with the UNA of
Russia and the Center for National Security and International Relations (Moscow) in a
Russian-American dialogue on how to organize and prepare the UN to undertake
military enforcement operations if they are needed. Co-chaired by Edward Luck and
Sergei Rogov, the group included several top American military and foreign policy
experts and a number of high-level Russian military and foreign ministry officials
serving in their personal capacities. Among the participants were Admiral Leon A.
Edney, former Commander-in-Chief of the U.S. Atlantic Command, Ambassador
Ronald L Spiers, former Under Secretary of State and Under Secretary-General of the
UN, Sergey Lavrov, Deputy Minister of Foreign Affairs of Russia, General Vladimir
Lobov, former Commander of Warsaw Pact forces, and Major General Nikilai
Zlenko, First Deputy Head of the Department for International Military Cooperation
of the Russian Ministry of Defense. After a series of joint meetings, the task force
released its final report, WTien Diplomacy Fails: Russian- American Proposals for
United Nations Military Action, which recommended that the Security Council and the
Military Staff Committee be restructured, that the two nations negotiate generic and
207
conditional Article 43 agreements with the Security Council concerning stand-by
forces, and that a three-tiered system of stand-by forces be established. The group
also put forward proposals for command and control arrangements and for the role of
regional organizations.
3) You say that when conditions are right, the UN can malte the critical difTerence
in peacekeeping.
—Could you tell us what conditions have to be met, and whether these conditions
should be more clearly defined in the legal framework?
In traditional UN peacekeeping operations, lightly armed international military forces
are deployed to oversee a truce, to monitor compliance with the terms of a peace
agreement, and/or to separate the parties to a conflict in order to discourage further
incidents and to permit diplomacy to proceed towards a more lasting solution. Their
task is not to enforce the peace and in most cases they have neither the mandate nor
the capabilities to do so. It is critical to their success, therefore, that they receive a
substantial degree of cooperation from the parties to the conflict. While 100 percent
cooperation can never be guaranteed, it is essential that the members of the Security
Council make a sober and careful analysis of conditions on the ground before
dispatching UN peacekeepers. Peacekeeping is like a medicine that can produce
wonderful results when applied to the right patient at the right time, but it is useless,
perhaps even dangerous, when either the disease has been misdiagnosed or the
medication is given to the wrong patient.
Some of the most difficult situations are those that seem to fall between Chapter VI
peacekeeping and Chapter VII military enforcement conditions. In Haiti and Somalia,
this ambiguity fed ambivalence among political decision-makers in Washington and
other capitals, compounding the difficulty of obtaining sufficient political support for
the missions. In Bosnia, on the other hand, clear conditions for Chapter VII
enforcement have prevailed on the ground, but for political reasons key member states
have found it more convenient until recently to treat it as a Chapter VI peacekeeping
mission.
While serious mistakes have been made, they have been based on political and
strategic judgments that cannot easily be legislated. Each case, moreover, has a
unique set of characteristics that may not fit any particular list of criteria. Congress
should maintain careful oversight of peacekeeping operations as they unfold, but it
cannot through legislation guarantee that each mission will develop smoothly without
unexpected twists and turns along the way.
/
208
4) As you mentioned, the UN is being called upon to participate in complex missions
around the world. However, the State Department has said that regional
organizations may be a more cost-effective alternative.
—Do you think that criteria should be established to help the world determine the
most appropriate vehicle for peacekeeping?
—Should the UN be called upon only after all other means have been exhausted?
The UN Charter envisioned a world in which regional organizations, acting under its
Chapter VIII provisions and with the authorization of the Security Council, could
complement the peace operations carried out by the global body. It would certainly
be desirable to have a more balanced division of labor in which the UN would not
have to carry so much of the peacekeeping and peace enforcement burden. However,
in reality no region other than Europe has a well -developed, well-financed, and
militarily-capable regional organization that can undertake such tasks on a regular
basis. And in the case of the collapse of the former Yugoslavia, European
organizations have tended to be ineffective and politically divided. Regional bodies
tend to be weakest in those areas of high tension where they are most needed.
The proximity of regional actors to a crisis can be both an advantage and a
disadvantage. They may have special knowledge and experience, their resources are
close at hand, and their interests in seeing a near-by conflict resolved may be greater
than those of nations far from the scene. On the other hand, they may have a vested
interest in helping one side or another, their past involvements may make them
suspect, and it may be difficult for them to play the neutral mediation roles that come
natural to the UN. None of the regional organizations, moreover, has the UN's long
experience in peacekeeping.
In most cases, the most effective response is one that integrates and coordinates the
efforts of regional organizations, major powers, and the United Nations under a
common strategy and towards agreed ends. The key is the combination of their
different attributes and the flexibility that brings to the undertaking. A concerted
effort to beef up the capabilities ~ political, financial, and military - of regional
organizations is needed so that they can play a larger role and carry more of the
burden in the future.
While the Charter outlines a three-tiered process for resolving conflicts ~ first the
parties, then regional organizations, and finally the UN - it would be wrong to
conclude that the UN should only be called upon after all other means have been
exhausted. In highly volatile situations, early mediation and preventive diplomacy by
the UN may be the key to heading off an escalation of violence. If the implications
of a crisis are global -- not just regional - in scope, as is the case in North Korea,
then it is important to involve the Security Council and its five permanent members at
an early stage. Because regional organizations tend to be weak or divided, there has
been a tendency to make reference to the Security Council the first recourse in crisis
209
after crisis, leading to an overblown agenda and overstretched resources. Over time,
as regional alternatives are strengthened, a better balance hof)efully will be possible.
5) You mentioned that "handing responsibilities to the UN ofTers the chance of
sharing the burden, not giving it up entirely."
—Are you saying that if the UN was not involved, the US would be shouldering an
even greater burden in its role as world police? For example, instead of paying
30% of the costs - we would be paying 100%.
—You seem to be implying that through the UN the US is able to leverage
resources from other countries to further its foreign policy objectives. Could you
elaborate?
In choosing to handle a crisis through the UN, the US government in effect is
deciding to undertake a joint venture, with the other partners sharing in the costs,
risks, and responsibilities in return for a voice in decision-making. By sharing the
burden with others, the US does not eliminate its own costs but it can reduce them
substantially. Paying 30 percent is a lot less than 100 percent, so our financial glass
is well more than one-half full even if would prefer to negotiate our share down to 25
percent.
Containing conflicts around the world, of course, is an interest that the United States
shares with other countries and it is only logical and fair that shared interests should
lead to the sharing of costs as well. By voting in the Security Council to authorize
new UN peace operations, other nations, as well as the US, are accepting
responsibility for a portion of their costs and risks. Decisions by the Security Council
are binding on all 184 member states and in most cases the assessments for
peacekeeping and enforcement operations are mandatory.
If the US chooses to respond unilaterally to a crisis, however, other countries usually
do not feel an obligation to assist in financing the resulting actions. By getting
Security Council authorization, the US has a chance to gain both broad political
legitimacy and financial backing for a preferred course of action, even if its forces
have to play a disproportionate role in its enforcement. In seeking to expel Iraq from
Kuwait, President Bush showed that he understood this principle well. By seeking
Council approval of a step-by-step escalation of pressure on Iraq, President Bush
managed not only to gain wide political support at home and abroad, but also to
persuade other countries to reimburse almost all of the massive expenses associated
with Desert Storm.
210
6) You said that you think the US should enter into an Article 43 agreement.
—Could you summarize for us why you think now is the time to enter into such
an agreement, since more than 40 years have passed without formally entering
into such an agreement?
It is popular among scholars and policy analysts to dismiss Article 43 of the UN
Charter as a dead letter, since no nation has negotiated an agreement with the Security
Council to earmark stand-by forces in the UN's almost fifty year history. In my
view, however. Article 43 has been just one more casualty of the Cold War, as has
been the Military Staff Committee. When consensus among the Security Council
members was rare, and consensus on enforcement actions rarer still, there was little
need for taking those steps that would give the United Nations the capability for
organizing effective military action under Chapter VII. Today, all of this has
changed.
In Somalia and Bosnia, it has been quite evident that the United Nations lacks the
infrastructure, communications, experience, and command and control mechanisms to
carry out effective military operations under Chapter VII conditions. That is not
surprising, since these are relatively new tasks for the world organization and the
member states have never sought to give it the wherewithal to undertake military
enforcement operations on a large scale. Article 43, like the Charter provisions for
the Military Staff Committee, was intended to be one step toward the establishment of
a real collective security capability. It would be inconceivable, for example, to
sustain an alliance like NATO without an indication from the various allies of what
forces each would commit to the common defense.
The UN, of course, is not a military alliance, so its collective security arrangements
need not be as fully developed as NATO's. To the extent that the UN is being asked
to undertake high-risk, high-cost collective security missions, however, it is in
America's national interest to help prepare the world body for such grave
responsibilities. Since the UN must depend on the combat forces of key member
states, it would be helpful if those forces could undertake joint training and exercising
between contingencies, if their officers could work together on rules of engagement,
standard operating procedures, and communications arrangements, and if a revived
Military Staff Committee would give some thought to contingency planning. All of
this would be facilitated by the negotiation of Article 43 agreements between
significant military powers and the Security Council. I would argue, as has the
Russian-American task force noted above, that such an agreement be generic and
conditional for the United States given the enormous range of our relevant military
capabilities and the importance of following constitutional processes before
committing our forces to combat situations.
211
7) You advocate lifting the cap of 1,000 detailees for non-combatant capacities.
—What would be the implications of increasing the cap or eliminating it
altogether?
In my view, Section 7 of the UN Participation Act of 1945 is a relic from a very
different era. The setting of a cap on the number of US military personnel detailed
for non-combatant services in non-enforcement operations of the UN places an
unnecessary restriction on activities that are expanding and that serve US national
interests. In general, we should be encouraging the UN to undertake more non-
combatant responsibilities in areas such as mine-clearing, arms control monitoring,
truce supervision, and emergency humanitarian assistance, even as we urge caution in
considering Chapter VII enforcement operations. If the former tasks are performed
well, in some cases the latter will not be necessary. Therefore, I believe that it would
be better to eliminate the quantitative ceiling altogether rather than simply to raise it.
8) As you state, "the tradition of UN peacekeeping and enforcement missions - not
unlike NATO - has been to cede the overall operational command to an officer of
the country contributing the largest share of the forces with individual units
continuing to work under their national commander within this overall
structure."
—How effective has this been?
—What are the advantages and disadvantages to this tradition of peacekeeping
enforcement missions?
—Do you see any reason to change this practice?
Through the years, UN peacekeeping operations have been under the command of
officers from a number of countries. They are appointed by the Secretary General
with the consent of the Security Council. Though there is no hard and fast rule, and
there are sometimes political tugs-of-war over the choice, generally the force
commander comes from the nation providing the largest contingent of troops. This is
a sensible rule and the quality of commanders has tended to be reasonably high,
though this has been a product of personal characteristics and chemistry as much as of
nationality.
The practice of having national uniu led by their own officers makes good sense. It
would be disruptive to do it any other way, especially given questions of language,
culture, training, discipline, and morale. For peacekeeping operations under Chapter
VI, there is no pressing need to revise the current system.
As the UN undertakes more Chapter VII enforcement operations, however, command,
control, and communications arrangements need to be reassessed and upgraded. They
are placed under much greater pressure in enforcement than in peacekeeping
operations. In particular, the practice of maintaining dual reporting lines to the UN
and to the home government can be very dangerous in combat situations, as was seen
212
graphically and tragically in Somalia. Communications systems need to be
reinforced, improved, and made redundant both within the field and with New York
headquarters. The Military Staff Committee should be revived, or its equivalent
created, to help the Security Council fulfill its Chapter VII oversight responsibilities,
rather than putting the Secretary General at the center of military decision-making in
enforcement operations. Chapter VII is very serious business, in other words, and
the member states should make certain that the UN has the wherewithal and the
infrastructure to do enforcement professionally and competently if it is to be asked to
do enforcement at all.
213
CHAIRMAN CONYERS' FOLLOWUP QUESTIONS
FOR
PROFESSOR EUGENE ROSTOW
1 ) You mention in your testimony that US troops fought under foreign
command in the First and Second World War. As you know, this
arrangement has its opponents. However, it sounds like you would be
in favor of such an arrangement on a case by case basis.
- Is it safe to conclude then that you would be opposed to
an outright ban on having US troops fight under foreign
command?
— Why do you think this particular Issue has become such a bone
of contention in recent times when it appears it has actually
served our interests well in the past?
2) You state that the troubles that have arisen in seeking a workable
solution to the problems in Somalia and Haiti were due not by
deficiencies in the legal structure governing the relationship of the United
States to U.N. peacekeeping operations, but by mistakes of judgement
in the conduct of these operations, and the normal vicissitudes of
politics and war.
— Exactly what mistakes of judgement in the conduct of
these operations are we talking about? Please be specific as
it relates to Somalia and Haiti.
3) You believe that no changes should be made in the legalistic
interpretation of the terms peacemaking, peace enforcement,
peacekeeping and nation-building because they are fluid terms, which
will naturally change with the times.
~ Do you think the nations of the world are as reasonable as
you are? That is, there is no need to clarify terms because
of a general understanding among nations that as the world
changes, adaptations can and will be made without formality?
- The lingering vagueness of terms allows varying
interpretations by nations. Couldn't this lead to problems
with other nations that don't concur?
214
4) You believe that the United States should not enter into Article 43
agreements with the United Nations to govern the number and types of
military forces the U.S. contribute to U.N. enforcement actions because
you believe the procedures proposed in Articles 39-50 of the U.N.
Charter for peace enforcement by the Security Council are unworkable,
and. will remain unworkable.
Are you saying that the United States should continue
its "business-as-usual" manner in its relationship with the
United Nations?
What would the United States lose if it were to enter
into Article 43 agreements?
Are there any other formal alternatives?
215
NATIONAL DEFENSE UFilVERSHTY
MtUSTnUL COU£Ge OF 1HE WUEO FOnCES
REPLVTO March 16, 1994
ATTBinONOF:
Legislation and National Security Subcommittee
B-373 Rayburn House Office Building
Washington, D.C. 20515
Attention Cheryl Matcho, Clerk
Chairman Conyer's letter to me of March 9, 1994, arrived on
March 15. Please convey my thanks to the Chairman for his kind
words about my testimony.
1. Yes, I am strongly opposed to an outright ban on having
U.S. troops serve under a foreign commander. The issue has
become a bone of contention as a symbol of thoughtless American
nativism. On a case by case basis, having American troops under
cui Allied Commander was a positive element in building Alliance
solidarity during both World Wars.
2. The mistakes of judgment In the conduct of the Somalia
and Haiti operations both derive from faulty intelligence, on the
one hand, and, in the case of Haiti, from our deep seated but
entirely misplaced faith in the political effectiveness of
economic sanctions. In Somalia, our intelligence led us to
believe that the people of Somalia would rally spontaneously to
American political guidance. In Haiti, we misjudged the
populeurity of Aristide, and seemed to believe that a savage
embargo would topple the military junta. Our stubborn faith in
economic sanctions remains as strong as ever in the Americ2tn
mind, despite the fact that it has never been a useful instrument
of diplomacy or of warfare. Sometimes indeed--as in the case of
our embargoes of Japan before Pearl Harbor, economic sanctions
have been catastrophic. In the case of Haiti, it has proved to
be a morally disgusting weapon for a great power to use against a
pitifully small one.
3. Yes, the nations of the world are quite as reasonable as
I am. I think we could promote some uniformity of usage if we
tried to keep "peace keeping" to its original meaning of lightly
armed patrolling as an adjunct of diplomacy, and left the heavy
lifting of enforcement actions to NATO or other coalitions of
collective self-defense. Such a policy would limit U.N.
interventions to situations U.N. forces could be expected to
handle. Does the lingering vagueness of these terms lead to
friction among the nations? In my experience friction among t^
nations arises from differences of policy, not of definition.
CXCCUfNCE AND UNtTY IN EDUCATION AND RESEARCH
216
4. What harm would it do If we did enter into Article 43
agreements? If the United States did enter an Article 43
Agreement with the Security Council, it would create a wide
epread expectation at home and abroad that the United States
would favor trying to enforce the Charter rule against serious
aggression through the Security Council rather than through
arrangements of collective self-defensa. This is not a policy we
should favor or encourage in any way.
We should continue to use the United Nations machinery In
our diplomacy for functions within its competence as a diplomatic
forum, an influence for conciliation and mediation, a agency for
law reform.
Yours sincerely,
a
4>-*
Eugene V. Rostow
Distinguished Research Professor
National Defense University
Adjunct Scholar
American Enterprise Institute
cc: Mr. Vincze
BVRiac
217
MINORITY'S FOLLOWUP QUESTIONS
FOR
CONRAD HARPER
(1) As Mr. McCandless indicated in his opening statement,
the questions that we have posed about the adequacy of the
existing legal framework for peacekeeping is in the broader
context of determining why peacekeeping hasn't worked recently;
or put another way, how we can improve peacekeeping. You do
agree, do you not, that we need to find ways to improve the
effectiveness of peacekeeping, to make it work better? Please
explain each of your answers.
A. I agree that we need to find ways to improve the
effectiveness of peacekeeping. That is, in fact, the purpose
of the Administration's review of peacekeeping policy.
(2) You should know, Mr. Harper, that your thoughtful
statement made at an October conference of the ABA Committee on
Law and National Security is in large part responsible for
inspiring this hearing. In that statement you wrote the
following: "As President Clinton and Secretary Christopher have
made clear,. American foreign policy now has three parts: (1)
building American prosperity, (2) modernizing America's armed
services; and (3) promoting democracy and human rights abroad.
These new goals require us to consider both the creation of new
laws and the modification or elimination of old ones, (emphasis
added.)" Do you still agree with this statement? Is this a
statement about policy, legal issues, or both? Please explain
each of your answers.
A. I still agree with this statement. I referred in
particular to the Administration's proposed FRIENDSHIP Act to
eliminate or revise statutory relics of the Cold War and
proposals to replace COCOM with new arrangements to control the
spread of dangerous technologies. My purpose was to suggest to
a group of lawyers how the foreign policy of the Clinton
Administration might be translated into law.
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(3) You indicated at the hearing in both your written and
oral statements that you would answer only questions that
relate to legal issues. Please explain to us why? We recall
that in November, the State Department refused to appear at
this hearing citing the "development of peacekeeping policy at
the highest levels" as the reason. Four months later at the
hearing itself you suggested that you would not discuss policy
at all. Please explain why "developing policy at the highest
levels" prevented you from testifying in November if you could
not testify about policy?
A. I was asked by the Committee to testify about the legal
framework for peacekeeping operations and I did so. At the
same time. Administration policy officials have been consulting
with Congress on the policy issues involved. As the State
Department Legal Adviser, it is my responsibility to deal with
legal issues. Policy issues are dealt with by those
responsible for policy.
With respect to the timing of the hearing, I understand
that the Department suggested in November that it would be more
useful to schedule this hearing when the Administration had
completed its policy review so that the scope and character of
the legal issues involved could be addressed with desired
precision. I believe this was sound advice. This does not
mean, however, that it would have been appropriate for me to
attempt to be the Administration's spokesperson on policy
issues .
(4) Do you not agree that as the top lawyer in the Legal
Adviser's Office that you and your fellow State Department
lawyers find yourselves developing new ideas, new theories, and
new approaches to respond to both the legal and policy
questions that now confront the State Department? Doesn't your
position necessarily require the juxtaposing of both legal and
policy questions; are not the two inherently linked at some
point? Do you disagree that law and policy must be developed
together, that they can not and should not be completely
isolated from one another? Please explain each of your answers.
A. I agree that legal and policy questions cannot be
isolated from one another and that a good lawyer must
understand policy problems to be able to provide legal
approaches for their resolution. That does not mean, however,
that I, as the Department's chief lawyer, would attempt to
decide policy issues or to serve as the Department's
spokesperson on policy issues before a Committee of Congress.
That is the responsibility of my colleagues who are policy
officials .
219
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(5) Do you agree with President Clinton when he stated in
an October 17, 1993 interview with the Washington Post that
part of his job is to have "a great national dialogue" on
foreign policy to include peacekeeping issues?
A. Yes. I understand that Administration policy officials
have been doing that with respect to the Administration's
policy review on peace operations and in monthly briefings Cor
Congress on U.N. peace operations. President Clinton and other
Administration officials have spoken publicly and before
Congress on peacekeeping issues since the beginning of this
Administration.
(6) Do you agree with the President when he wrote to
Senator Byrd promising to "work closely with Congress ... to
build a common vision of the appropriate nature of U.S. support
for U.N. peacekeeping?"
A. Yes. Again, I understand that Administration policy
officials have been doing that.
(7) You have indicated that in your opinion it is not
legally necessary to define or clarify as a matter of law the
terms "peacekeeping," "peace enforcement," "peace operations,"
and other similar terms, such as "nation building" and "peace
making." Please explain to us why this is not necessary in
your opinion. Nevertheless, for the record, you do agree, do
you not, that these terms not only are not defined but do not
even appear in the U.N. Charter or the U.N. Participation Act?
A. As I stated in my testimony, it is not legally necessary
to define these terms. The mandate of the Security Council for
each operation defines its scope and character and may
establish further parameters of the mission for the operation.
These terms do not appear in the relevant provisions of the
U.N. Charter or the U.N. Participation Act, nor have they been
used in Security Council resolutions to define the specific
mandates of peace operations. For these reasons, definition of
these terms is not legally necessary.
220
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(8) You have stated, however, that it is useful to have a
common understanding of the meaning of these various terms. Do
you sincerely believe that today there is a common
understanding amongst the American people and amongst the
member nations of the U.N. of what peacekeeping means? If no,
then how would you develop such an understanding; if yes, then,
how do you respond to Senator McCain that peacekeeping appears
to mean one thing in Somalia, one thing in Haiti, and one thing
in Bosnia? Please explain each of your answers.
A. As I stated in my testimony, we use the term
"peacekeeping" to refer to operations carried out with the
consent of the states or other significant parties involved;
these are traditionally non-combat operations (except for the
purpose of self-defense) and are normally undertaken to monitor
and facilitate implementation of an existing truce arrangement
and in support of diplomatic efforts to achieve a political
settlement of a dispute. We use the term "peace enforcement"
to refer to operations involving the use or threat of force to
preserve, maintain or restore international peace and security
or to deal with breaches of the peace or acts of aggression.
We use the term "peace operations" to refer to the entire scope
of peacekeeping and peace enforcement activities.
I believe this is the way these terms are generally used,
but I cannot assert that they are always so understood. What
is important, however, is that the mandate of each peace
operation is clearly defined and commonly understood among
member states. Of course, peacekeeping or peace enforcement
measures adopted in one situation would not necessarily be
appropriate in another. That is why there are differences in
the measures we have taken or proposed to take in Somalia,
Haiti and Bosnia.
(9) As a lawyer, do you not agree that precision and
clarity in terminology is important? Is it not important to
know and understand the distinctions between the terms
"peacekeeping" and "peace enforcement?" Please explain each of
your answers.
A. I agree. That is why in my testimony I offered the
explanation of our use of these terms as set forth in the
answer to Question 8. That does not mean, however, that these
terms need to be codified in law in order to be used
appropriately in policy discussions.
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(10) It is my understanding that the Clinton Administration
in developing criteria for evaluating whether to approve
peacekeeping proposals is considering using the broader term of
peace operations, which, as you have stated encompasses both
peacekeeping and peace enforcement. Doesn't the term peace
operations obfuscate and blur the distinctions between peace
enforcement and peacekeeping? Isn't one of the lessons learned
from the tragedy in Somalia is that we need to clearly
understand what the mission is and be aware of when it changes
and how, i.e., the mission in Somalia started out as a
humanitarian peacekeeping one but turned into a peace
enforcement one without a clear understanding of the
differences between the two. Please explain each of your
answers .
A. I believe our suggested use of these terms is clear. I
do not believe events in Somalia turned on word usage, but
rather on the hard realities of the situation in that country.
In fact. Operation Restore Hope, ordered by President Bush in
Somalia in December 1992, was specifically understood by the
Security Council to be what I have described as a peace
enforcement operation, in that it was authorized under Chapter
VII of the Charter, with a mandate that included the authorized
use of force where necessary to accomplish the prescribed
mission, in a situation where consent by the state in question
could not be obtained. UNOSOM II was established and continues
as a peace enforcement operation under Chapter VII of the
Charter.
(11) You stated that the question of whether we should
enter into Article 43 agreements is "of course a policy, rather
than a legal, question." Article 43 concerns the contribution
of armed forces to U.N. Chapter VII enforcement actions, does
it not? And it requires that the contribution of these forces
be governed by agreements entered into between the U.N. and
member states, correct? But these agreements have never been
entered into, have they? Now, the U.N. operation in Somalia
was a Chapter VII enforcement action, was it not? The
authority relied on to contribute forces to this operation was
the President's constitutional authority as the
Commander-in-Chief and as the Chief executive, right? Does any
other authority support the Somalia troop contributions? Was
there any prior Congressional approval obtained? Was it
legally required? Please explain each of your answers.
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A. You are correct in stating that Article 43 concerns the
contribution of armed forces to Chapter VII enforcement
actions. But the Charter does not require that such forces
only be contributed to Chapter VII enforcement actions pursuant
to Article 43 agreements. The Security Council has, on a
number of occasions, authorized member states to take military
action to enforce the Council's decisions outside the framework
of Article 43. In fact, as you correctly state, there are no
Article 43 agreements.
You are correct that the U.N. operation in Somalia was a
Chapter VII enforcement action. As to the authority under U.S.
law for this operation. President Bush stated in his December
10, 1992, report to Congress that "I have taken these actions
pursuant to my constitutional authority to conduct our foreign
relations and as Commander in Chief and Chief Executive, and in
accordance with applicable treaties and laws." In his June 10,
1993, report to Congress, President Clinton reiterated this
authority. President Bush did not obtain prior Congressional
approval, nor was it legally required, since he acted pursuant
to the constitutional authorities cited. Following the
intensified fighting in Mogadishu in the late summer and fall.
Congress approved the use of U.S. Armed Forces in Somalia for
certain purposes through March 31, 1994, and for more limited
purposes thereafter, in Section 8151(b) of the 1994 Department
of Defense Appropriations Act.
(12) In enacting the U.N. Participation Act and
specifically section 6 of that act wasn't Congress concerned
about committing U.S. forces to a U.N. enforcement action, i.e.
a combat situation, without some prior input from the
Congress? Doesn't the legislative history suggest that for
Chapter VII enforcement actions, some form of Congressional
approval is required? Please give us your reaction to the
colloquoy about Article 42 and 43 between then Secretary of
State Dean Acheson and Mr. Kee as transcribed at the bottom of
p. 25 and the top of p. 26 of the December 7, 1945 record
hearings before the House Committee on Foreign Affairs
concerning "Participation By the United States in the United
Nations Organization." (See attached copy.) How do you
respond to Mr. Acheson 's remarks. Please explain each of your
answers .
A. The United States has participated in a number of
Chapter VII enforcement actions, under both Republican and
Democratic Administration. To my knowledge, no President has
ever taken the view that Congressional approval was a
prerequisite to participation in such operations.
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15 -
Section 6 of the U.N. Participation Act does not require
Congressional approval as a prerequisite to such
participation. Rather, it requires Congressional approval of
any special agreements with the Security Council under Article
43 of the U.N. Charter that commit the United States to provide
forces at the call of the Security Council for the maintenance
of international peace and security. No such agreements have
ever been concluded and Section 6 has accordingly never been
implemented. Section 6 in no way detracts from the authority
of the President under the Constitution as Commander-in-Chief
and as Chief Executive with responsibility for the conduct of
foreign relations. Nor does the absence of a special agreement
under Section 43 prevent the United States from participating
in Chapter VII enforcement actions outside the context of
Section 43.
The remarks of then Assistant Secretary Acheson cited in
your question are in no way inconsistent with these
conclusions. He was addressing the deployment of U.S. forces"
pursuant to agreement with the Security Council under Article
43. (At that time, in the immediate aftermath of World War II
and the adoption of the U.N. Charter, there was an expectation
among many that the provisions of Article 43 would be
implemented.) As Acheson stated, an agreement under Article 43
requires Congressional approval under Section 6 of the U.N.
Participation Act. He did not address the President's
Constitutional authority in the absence of such an agreement.
In fact, as Secretary of State, he later defended the right of
the President to participate in U.N. military operations in
Korea without prior Congressional approval.
(13) These questions do not advocate entering into Article
43 agreements. Rather, they attempt to point out that a real
legal question exists of by what legal authority may the
President commit U.S. forces to U.N. Chapter VII enforcement
actions in light of congressional action in the U.N.
Participation Act and the absence of Article 43 agreements.
The President very well may have the necessary constitutional
authority in these cases. Should Congress limit that authority
with regard to U.S. contributions of armed forces to U.N.
peacekeeping or peace enforcement operations through
legislation? Why or why not? Please explain each of your
answers .
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A. My answer concerning the President's legal authority is
contained in my answers to the previous questions. The
position of the Administration is that it is inappropriate and
unnecessary for the Congress to attempt to place statutory
constraints on the President's exercise of his constitutional
authorities in this area. As this Administration has
demonstrated, it intends to cooperate fully with Congress in
pursuing our common national security objectives and to consult
fully with Congress in reaching decisions on the deployment of
U.S. forces in potentially hostile situations.
(14) You have answered that there is an adequate legal
framework. But you have not stated what it is adequate for.
Is the legal framework adequate to conduct effective
peacekeeping and peace enforcement operations? Don't you
believe it could be improved? If yes, how and when? If no,
why not? Please explain each of your answers.
A. The Committee asked whether there is an adequate legal
framework to determine what the role of U.S. military forces
will be in future U.N. peace operations. I answered that there
is an adequate legal framework for this purpose. This of
course means a legal framework adequate to conduct effective
peacekeeping and peace enforcement operations. The
Administration is not seeking legislative improvements at this
time .
(15) If the legal framework is adequate for peacekeeping,
would you agree that the recent problems we have encountered in
peacekeeping are problems that are grounded in policy? Is it
your opinion that there is nothing fundamentally wrong with the
legal framework for peacekeeping at this time, and that the
effectiveness or ineffectiveness of this framework has not
prevented President Clinton from formulating an effective
peacekeeping policy? Please explain each of your answers.
A. I do not believe that there is anything fundamentally
wrong with the current legal framework for peacekeeping. I
would refer you to Administration policy officials with respect
to questions about the effectiveness of the peacekeeping policy
of the Administration.
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(16) Mr. Harper, you stated back in October in the context
of reducing the proliferation of nuclear, chemical, biological
and other weapons that, "In short, we have replaced "Peace
through Strength" with what we call 'collective threat
reduction'." Please explain for us what "collective threat
reduction" means, and whether the replacement of the doctrine
of "peace through strength" pertains to other areas of national
security as well.
A. Once again, I was explaining to a group of lawyers how
the Clinton Administration's foreign policy might be translated
into law. The sentence you have quoted in part went on to say
that "collective threat reduction" means "the understanding
that the world community -- East and West, North and South,
democratic and authoritarian -- must band together to reduce
the supply of nuclear, chemical, and biological weapons and
other dangerous technologies." I referred specifically to the
Administration's pursuit of a comprehensive nuclear test ban
treaty, its work to persuade former Soviet republics with
nuclear weapons within their borders to ratify START I and to
adhere to the Nuclear Non-Prolif eration Treaty, our support for
ratification of the Chemical Weapons Convention, and other
legal actions to deal with proliferation concerns.
(17) Congressman Benjamin A. Oilman wrote to Anthony Lake,
Assistant to the President for National Security Affairs, on
February 14, 1994, to express a number of concerns about
Administration peacekeeping policy. Among other things, he
asked that the Office of Legal Counsel at the Department of
Justice review the constitutionality of foreign command of U.S.
armed forces, particularly in light of the Appointments clause
(Article II, section 2, paragraph 2) and the Oaths clause
(Article VI, paragraph 3). Has the Justice Department begun to
review this issue, and if so, when will its review be completed?
A. I would refer you to the Justice Department for any
further response to this question.
(18) Will the proposed Presidential Decision-Directive on
peacekeeping policy, PDD-13, require any implementing
legislation? If so, what type of legislation, and when will it
be submitted to Congress? If not, please explain why not.
226
18 -
A. The PDD on peacekeeping is a comprehensive review of
Administration policy in the area of multilateral peace
operations, both in regard to our relations with the U.N. and
to the allocation of responsibility within the Administration
for supporting and participating in such operations. While
implementing legislation is not required with regard to our
relations with the United Nations, the PDD does indicate that
the Administration will seek the creation of a Department of
Defense account to fund peace operations under the primary
responsibility of that Department. This would require
legislative action, the specifics of which will be proposed in
due course.
(19) Has your office already begun work on drafting
legislation that may be required to implement PDD-13? If so,
when did this work begin?
A. I refer you to my answer to the previous question.
227
STATEMENT OF UNITED NATIONS
SECRETARY GENERAL BOUTROS BOUTROS-GHAU
FOR THE RECORD
C. PBACB-KBBPINO IN A CHANOINO CONTEXT
Just as prevotttivc diplomacy and conflict resolution, familiar 292
responsibilities of the United Nations, have taken on new di-
mensions, so the term peace-keeping kiow stretches across a
hetetofore unimagined range of United Nations activities and
responsibilides.
Peace-keeping is a United Nations invention. The concept 293
is, however, not a static one. but is ever changing; in order to suc-
ceed, and to reflect the changing needs of the community of
States, peace-keeping has to be reinvented eveiy day. Each case
in which United Nations peace-keepers ate involved draws upon
the ftind of experience, imagination and professionalism of the
Organization. It is not an exaggeration to state that today there
aie as many types of peace-keeping operations as there are types
of conflict
The Usk of peace-keeping, like that of peacemaking, is 294
subject to an essential constraint: for peace-keeping to succeed,
the parties to a conflict roust have the necessary political will.
Peace-keeping, even more than peacemaking, requires the
adherence of the conflicting parties to the principle of peace-
flil resolution of conflicts, in other words, to the Charter
itself.
228
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Thf. 5 \shivcto> Po«t
Mo\du.Aicist30, 1993 A19
Jeane Kirkpatrick
Where Is Our Foreign Policy?
"What is our purpose?" Senate Minori-
ty Leader Robert Dole asl<e<i of the
latest U.S. commitment of troops to
Somalia. "What is the cost? How long will
they stay?"
U.N. Secretary General Boutros Bou-
Iros-Ghall addresses these questions in
his most recent report to the Security
Council on Somalia. But his answers
would not please Dole or a growing
number of senators and representatives
concerned about the increasing U.S.
commitment to the U.N. operation in
Somalia.
Boutros-Ghali explains that what be-
gan as an effort to prevent mass starva-
tion has become a campaign "to recon-
struct (Somalia's! political, social and
material infrastructure on a lasting ba-
sis." to disarm warring factions, appre-
hend "criminal elements," establish a
national police force, a prison system and
a judicial system.
The secretary general does not ex-
plain why the United States should com-
mit hundreds of millions of dollars and
nsk thousands of lives to nation-building
in one Afncan state. That is not his
responsibility. Explaining to American
taxpayers why these activities are in the
U.S. national uiterest is the responsibili-
ty of President Clinton and his adminis-
tration.
W^ know why the Bush administration
committed 20,000 troops to Somalia: It
was to stave off imminent starvation of
tens of thousands. But President Clinton
and his top advisers have not explained
why Americans should become militarily
involved in the internal politics of Soma-
lia— a distant country to which we have
no special ties. Nor have they explained
why the conflict in SomaUa should have
greater claim to U.S. resources than,
say, the bitter war of aggression against
Bosnia. The president's silence on these
questions has given rise to the com-
plaint, heard with increasing frequency,
that the Clinton administration has failed
to define a foreign policy. I believe that
complaint is not justjfied.
In fact, the Clinton administration's
foreign policy has been repeatedly de-
scribed and illustrated by top administra-
tion officials. But what they say and what
they do are so unfamiliar and unexpected
that I'bey are barely beard and even less
understoitd.
"77k? Qinton
administration offers
us a vision of foreign
policy from which
national self-interest is
purged."
For the Clinton team, implementing
the decisions of the U.N. Security Coun-
cil and the secretary general in Somalia,
Bosnia, Cambodia or wherever is our
foreign policy. Doing what the United
Nations calls on us to do is our foreign
policy. That is why Secretary of Slate
Warren Christopher Usted among the
administration's foreign policy accom-
plishments "taking the lead in passing
the responsibility to multilateral bodies."
It is presumably why the administration
accepted Boutros-Ghali's claim of au-
thority to decide when and where NATO
air strikes could take place in Bosnia and
why the U.S. dispatched crack troops to
SomaUa without raising serious ques-
tions about whether it is prudent, justifi-
able or in the U.S. interest.
The Clinton administration has made
acting through the United Nations the
centerpiece of U.S. foreign policy.
'There is a political will in the new
administration to use the United Nations
in solving international disputes," Bou-
tros-Ghali tok) David Frost soon after
Clinton's inauguration. And he was right
But even he must be surprised at the
extent of the Clinton administration's
commitment to global multilateralism.
The clearest statement yet of the
Clinton doctrine of "assertive multilater-
alism" was offered in U.N. Ambassador
Madeleine Albright's June speech to the
Council on Foreign Relations. But Chris-
topher and other policy-making mem-
bers of the CUnton team have empha-
sized and illustrated the administration's
belief that a strong United Nations is
critical to U.S. national security, that a
conflict anywhere is a threat to U.S.
national security and that they have a
conunitment to promote peace and de-
velopment everywhere through the
United Nations.
In Bosnia, Somalia. Cambodia and in
its sweeping plans to upgrade U.N.
peacekeeping capacities, the administra-
tion has demonstrated a will to make the
U.N. secretary general's priorities its
own.
In its support of Boutros-Ghali's
boundless agenda and unprecedented
claims of authority, in its willingness to
defer to U.N. decisions (as, for example,
on air strikes in Bosnia), in its decision to
place U.S. troops under U.N. command,
the Clinton administration defines its
foreign policy and dissolves the national
interest as traditionally conceived. It
eliminates from the calculation of inter-
ests and priorities factors like geogra-
phy, history and culture, which have
traditionally shaped the foreign policy of
nations. The Clinton administration of-
fers us a vision of foreign policy from
which national self-interest is purged.
And it proposes to forgo U.S. control
over important decisions and rely in-
stead on the judgment of international
bodies and officials.
The reason the Clinton administra-
tion's foreign policy seems indecisive is
that multilateral decision-making is char-
acteristically complicated and inconclu-
sive. The reason CUnton pohcy seems
ineffective is that U.N. operations — in
Bosnia or SomaUa or wherever — are
characteristically ineffective. The reason
Dole demands an explanation of our
purposes in Somalia, now that starvation
no longer looms, is that it is difficult to
relate SomaUa's internal political strug-
gles to any U.S. goals except the goal of
honoring the priorities of the U.N. secre-
tary general.
This is not the first time an American
administration has brought to U.S. for-
eign policy-making a global perspective
and tendency to prefer universal needs
to national interests. Many of the same
people now making foreign poMcy for the
CUnton administration tried these ideas
first when they served in the Carter
administration. But the Cold War and the
reaUty of Soviet expansion in the late
■70s imposed Umits on the Utopian quest
for a global community. Now, only Con-
gress can prevent the progressive loss of
control by Americans of our resources
and our future.
ei993. Us Ab««1m lunti SyDdkale
230
NATIONAL SECURITY LAW IN A CHANGING WORLD:
THE THIRD ANNUAL REVIEW OF THE FIELD &
A TRIBUTE TO JOHN 0. MARSH, JR.
PANEL DISCUSSION
'ADVIf^ING THE GOVERNMENT ON NATTQNAt <;fCURITY LAW:
A RQUNDTABLF DISCUSSION OF GENERAL COUNSELS"
CONRAD K. HARPER
LEGAL ADVISER
U.S. DEPARTMENT OF STATE
OCTOBER 8. 1993
WASHINGTON, D.C.
231
THE SIGHT OF ARCH ENEMIES — ISRAELI AND PALESTINIAN —
CLASPING HANDS AFTER DECADES OF HOSTILITY WILL REMAIN TO THE WORLD
AN INDELIBLE IMAGE. SO SIMPLE, A HANDSHAKE, YET IT SIGNIFIED A
WELLSPRIN6 OF COURAGE. IT REMINDED ME OF THE PERSONAL TRIUMPHS
OVER FEAR AND SUSPICION I WITNESSED DURING MY YEARS AS A CIVIL
RIGHTS LAWYER — TIMES WHEN WHITE AND BLACK PARENTS SHARED A MEAL,
DESEGREGATED A SCHOOL, UNIFIED A NEIGHBORHOOD, MARCHED AGAINST
HATRED AND PREJUDICE — AND WITH THOSE SIMPLE ACTS CHIPPED AWAY
THE TOWERING WALL JIM CROW HAD BUILT BETWEEN THEM.
THE QUIET REVOLUTIONS — TESTAMENTS TO INTEGRITY AND MORAL
CONVICTION — ARE AS SIGNIFICANT AS THE TRUMPETED ONES. THEY
CHALLENGE ALL OF US TO DISPLAY GREATER COURAGE THAN WE THOUGHT WE
HAD, TO SHOW DEEPER COMPASSION THAN WE IMAGINED POSSIBLE, TO
BECOME BETTER PEOPLE THAN WE ARE.
232
- 2 -
WE HAVE WATCHED RABIN AND ARAFAT SHAKING HANDS ON THE WHITE
HOUSE LAWN; THE BERLIN WALL FALLING; NELSON MANDELA LEAVING PRISON
AFTER NEARLY 30 YEARS TO BUILD A NEW SOUTH AFRICA; THE PEOPLE OF
CAMBODIA WALKING OUT OF THE KILLING FIELDS TO VOTE IN FREE
ELECTIONS. THESE ARE HISTORIC ACTS OF COURAGE AND HOPE. OVER THE
PAST SEVERAL YEARS, THE WORLD HAS CHANGED PROFOUNDLY — AND
PROFOUNDLY FOR THE BETTER.
AS YOU KNOW, UNDER THE OLD BIPOLAR REGIME, SOVIET COMMUNISM
AND EXPANSIONISM PROVIDED THE CENTRAL CONTEXT FOR AMERICAN FOREIGN
POLICY. OUR DEFENSE POLICIES, INTELLIGENCE APPARATUS, EVEN OUR
HUMANITARIAN ASSISTANCE WERE STRUCTURED WITH AN EYE FIXED ON THE
SOVIET UNION AND, AT TIMES, ON CHINA. OUR INTENSE FOCUS ON THE
CONTAINMENT OF COMMUNISM BECAME FOR SOME THE SOLE DEFINITION OF
"NATIONAL SECURITY." BETWEEN SUPERPOWERS LAY ANIMOSITY AND
SUSPICION; OVER THE WORLD HUNG THE CONSTANT THREAT OF NUCLEAR WAR.
THE LEGAL STRUCTURE REFLECTED THESE COLD WAR RIVALRIES. IN
THE ECONOMIC SPHERE, THE SEEDS OF MISTRUST AND ANTAGONISM TOOK
ROOT AND SPREAD. WE IMPOSED RESTRICTIONS ON ASSISTANCE AND
FINANCING FOR THE FORMER SOVIET UNION, LIMITED SOVIET ACCESS TO
OUR MARKETS, AND BOYCOTTED THE MOSCOW OLYMPICS.
233
- 3 -
TOGETHER WITH CANADA, WESTERN EUROPE, JAPAN AND OTHER ALLIES,
WE ESTABLISHED A COORDINATED SYSTEM OF CONTROLS ON MOST EXPORTS OF
SENSITIVE MILITARY AND DUAL-USE TECHNOLOGY TO THE SOVIET UNION AND
OTHER COMMUNIST COUNTRIES. THROUGH AN INFORMAL MULTILATERAL
VEHICLE -- THE COORDINATING COMMITTEE FOR MULTILATERAL STRATEGIC
EXPORT CONTROLS, OR "COCOM" — WE RESTRICTED THE AVAILABILITY OF
SENSITIVE TECHNOLOGIES TO COMMUNIST COUNTRIES SUFFICIENTLY TO
IMPEDE THEIR TECHNOLOGICAL EXPANSION.
LAWS AND TREATIES GOVERNING NUCLEAR WEAPONS ALSO REFLECTED THE
BIPOLAR WORLD VIEW. AS THE UNITED STATES AND THE SOVIET UNION
RACED TO IMPROVE THEIR NUCLEAR ARSENALS, WE NEGOTIATED ARMS
CONTROL AGREEMENTS THAT IMPOSED RELATIVELY MODEST LIMITS ON
STRATEGIC FORCES. IN OUR MINDS AND THEIRS, DETERRENCE WOULD COME
ONLY WITH NUCLEAR SUPERIORITY; SECURITY WOULD BE PRESERVED ONLY
THROUGH MILITARY MIGHT.
BUT THE END OF THE COLD WAR HAS BROUGHT SEISMIC SHIFTS IN THE
INTERNATIONAL SYSTEM. [^INCREASINGLY, WE IN THE LEGAL ADVISER'S
OFFICE FIND OURSELVES DEVELOPING NEW IDEAS, NEW THEORIES, NEW
APPROACHES TO RESPOND CREATIVELY AND EFFECTIVELY TOTHE LEGAL AND
POL I a QUESTIONS NOW CONFRONTING THE STATE DEPARTMENtJ^at ROOT,
CHANGE HAS COME NOT ONLY IN LAW AND POLICY BUT IN DEFINITION AND
CONCEPTION, IN OUR VERY UNDERSTANDING OF "NATIONAL SECURITY."
234
- A -
AS PRESIDENT CLINTON AND SECRETARY CHRISTOPHER HAVE MADE
CLEAR, AMERICAN FOREIGN POLICY NOW HAS THREE PARTS: (1) BUILDING
AMERICAN PROSPERITY; (2) MODERNIZING AMERICA'S ARMED SERVICES; AND
(3) PROMOTING DEMOCRACY AND HUMAN RIGHTS ABROAD. THESE PRIORITIES
ARE, COLLECTIVELY, VITAL TO OUR NATIONAL SECURITY; NO ONE OF THEM
— STANDING ALONE — GUARANTEES PEACE AND STABILITY.
THESE NEW GOALS REQUIRE US TO CONSIDER BOTH THE CREATION OF
NEW LAWS AND THE MODIFICATION OR ELIMINATION OF OLD ONES. LAST
APRIL, FOR INSTANCE, AT THE PRESIDENT'S REQUEST, MY OFFICE
REVIEWED A HOST OF LAWS GOVERNING RELATIONS WITH THE FORMER
SOVIET UNION. FOLLOWING OUR STUDY AND AN INTENSIVE INTERAGENCY
REVIEW, THE ADMINISTRATION SUBMITTED TO CONGRESS A BILL — CALLED
THE FRIENDSHIP ACT — TO ELIMINATE OR REVISE MORE THAN 70
STATUTORY PROVISIONS THAT WE CONSIDERED RELICS OF THE COLD WAR.
AMONG OTHER REFORMS, THE BILL WOULD REMOVE REGISTRATION
REQUIREMENTS FOR COMMERCIAL REPRESENTATIVES OF THE FORMER SOVIET
UNION AND ELIMINATE SPECIAL REVIEW PROCEDURES FOR EXPORTING TO
RUSSIA PRODUCTS DEVELOPED IN CERTAIN DEPARTMENT OF DEFENSE
PROGRAMS.
235
- 5 -
EQUALLY IMPORTANT, THE BILL WOULD ELIMINATE OR REVISE DIVISIVE
COLD WAR RHETORIC SPRINKLED THROUGHOUT OUR LAWS. FOR EXAMPLE, IT
WOULD DROP "IMPERIALIST" AND "SUBJUGATOR" AS INEVITABLE MODIFIERS
OF "RUSSIA." TAKEN TOGETHER, THESE MEASURES WILL ENCOURAGE
COOPERATION BETWEEN US AND FACILITATE EFFORTS TO PROMOTE
DEMOCRATIC REFORM AND ECONOMIC STABILITY IN RUSSIA, THE UKRAINE,
AND OTHER NEWLY INDEPENDENT STATES.
THE END OF THE BIPOLAR ERA ALSO HAS PROMPTED US TO RETHINK OUR
APPROACH TO EXPORT CONTROLS OF SENSITIVE TECHNOLOGIES. WE ARE
TALKING SERIOUSLY WITH OUR ALLIES ABOUT THE NEED TO REPLACE COCOM
WITH A NEW ARRANGEMENT REFLECTING A WORLD IN WHICH RUSSIA IS NOT
FOE, BUT ALLY IN HALTING THE SPREAD OF DANGEROUS TECHNOLOGIES TO
IRRESPONSIBLE HANDS.
COCOM HAS UNDERGONE SIGNIFICANT CHANGES SINCE THE BREAK-UP OF
THE SOVIET UNION. AMONG OTHER ACTIONS, IT HAS ESTABLISHED
CRITERIA FOR DETERMINING WHETHER SENSITIVE MATERIALS SHOULD BE
MADE AVAILABLE TO FORMERLY BLACKLISTED COUNTRIES. HUNGARY WAS
REMOVED FROM THE BLACKLIST LAST YEAR AND THE CZECH REPUBLIC WILL
SOON BE REMOVED, GIVING THEM FREE ACCESS TO PREVIOUSLY RESTRICTED
COMPUTER AND OTHER TECHNOLOGIES TO HELP IMPROVE THEIR ECONOMIES.
236
- 6 -
AS RESPONSIVE AS COCOM HAS BEEN TO THE DRAMATIC CHANGE IN THE
WORLD POLITICAL ORDER, THE TIME HAS CLEARLY COME TO CONSIDER
REPLACING IT. WE ARE CONSULTING WITH OUR ALLIES ON A PROPOSAL TO
MOVE EXPEDITIOUSLY TO SUPERSEDE COCOM WITH A BROADER REGIME THAT
WOULD, TOGETHER WITH RUSSIA AND OTHER NEWLY INDEPENDENT STATES,
SEEK TO CONTROL THE SPREAD OF ARMS AND SENSITIVE DUAL-USE
TECHNOLOGIES TO THOSE REGIONS WHERE PROLIFERATION POSES THE
GREATEST DANGER TO COLLECTIVE SECURITY. IN OTHER WORDS, NATIONS
THAT HANDLE SENSITIVE TECHNOLOGIES RESPONSIBLY WILL WORK TOGETHER
TO BUILD A SAFER ENVIRONMENT FOR EVERYONE.
THE POST-COLD WAR ERA ALSO HAS WITNESSED SIGNIFICANT CHANGES
IN ARMS CONTROL. THE BUSH ADMINISTRATION MADE IMPORTANT STRIDES
IN REDUCING STRATEGIC OFFENSIVE ARMS THROUGH THE START I AND
START II AGREEMENTS.
SINCE TAKING OFFICE, THE CLINTON ADMINISTRATION HAS SOUGHT TO
BUILD UPON THOSE AGREEMENTS BY MOVING TOWARD A COMPREHENSIVE TEST
BAN. IN ADDITION, WE ARE WORKING DILIGENTLY TO PERSUADE THOSE
FORMER SOVIET REPUBLICS WITH NUCLEAR WEAPONS WITHIN THEIR BORDERS
TO RATIFY THE START I AGREEMENT AND TO ADHERE TO THE NUCLEAR
NON-PROLIFERATION TREATY.
237
- 7 -
AND AFTER TEN YEARS OF ATTEMPTING TO RECONCILE THE 1972
ANT I -BALL I STIC MISSILE TREATY WITH LAUNCHING A STAR WARS STRATEGIC
DEFENSE INITIATIVE, WE HAVE DECLARED OUR FULL ADHERENCE TO THE
PROPOSITION THAT THE TREATY BARS THE PARTIES FROM DEVELOPING,
TESTING OR DEPLOYING SEA-BASED, AIR-BASED, SPACE-BASED AND
MOBILE LAND-BASED ABM SYSTEMS. IN OUR VIEW, THE PROMOTION OF
DEMOCRACY ABROAD SHOULD BE FOUNDED ON RESPECT FOR THE RULE OF LAW
AT HOME.
AT EVERY TURN, WE ARE WORKING VIGOROUSLY TO REDUCE THE
PROLIFERATION OF NUCLEAR, CHEMICAL, BIOLOGICAL AND OTHER WEAPONS.
THE PRESIDENT IS SEEKING SUPPORT FOR AN INTERNATIONAL AGREEMENT
THAT WOULD BAN THE PRODUCTION OF PLUTONIUM AND HIGHLY ENRICHED
URANIUM USED IN NUCLEAR WEAPONS. WE HAVE CALLED UPON ALL NATIONS,
INCLUDING THE UNITED STATES, TO RATIFY A CHEMICAL WEAPONS
CONVENTION.
IN SHORT, WE HAVE REPLACED "PEACE THROUGH STRENGTH" WITH WHAT
WE CALL "COLLECTIVE THREAT REDUCTION," THE UNDERSTANDING THAT THE
WORLD COMMUNITY ~ EAST AND WEST, NORTH AND SOUTH, DEMOCRATIC AND
AUTHORITARIAN — MUST BAND TOGETHER TO REDUCE THE SUPPLY OF
NUCLEAR, CHEMICAL, AND BIOLOGICAL WEAPONS AND OTHER DANGEROUS
TECHNOLOGIES.
238
- 8 -
THE PATH TO INTERNATIONAL PEACE AND SECURITY IS NOT WITHOUT
OBSTACLES. EVEN AS WE MOVE FORWARD, ANT I -DEMOCRATIC FORCES SEEK
TO PUSH US BACK. THE NEW ERA IS MARKED NOT ONLY BY COOPERATION
AND UNDERSTANDING, BUT BY EXTREMISM, GREED AND PREJUDICE. THE
SPREAD OF AGGRESSIVE FUNDAMENTALISM, ETHNOCENTRISM AND
FACTIONALISM HAS PROVOKED A RANGE OF REGIONAL WARS, ETHNIC
CONFLICTS AND TERRORIST PLOTS, WHICH UNDERMINE INTERNATIONAL PEACE
AND WELL-BEING. BOSNIA, GEORGIA, HAITI, SOMALIA, SUDAN, SENEGAL,
ZAIRE, SIERRA LEONE — THE LIST IS LONG AND GROWS LONGER.
BUT THE ENEMIES OF FREEDOM, OF LIBERTY, OF PROGRESS, OFTEN
SEEM MOST FORMIDABLE JUST BEFORE THEY PERISH. CERTAINLY JIM CROW
SEGREGATION LOOKED IMPREGNABLE IN 1945 AS DID THE BERLIN WALL IN
1985. NOW THEY ARE BOTH GONE AND IT IS FOR US TO ASSURE THAT THEY
HAVE NO SUCCESSORS.
239
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United Nations Association of the United States of America
485 Fifth Avenue • New York, NY 10017 • (212) 697-3232
EXECUTIVE SUMMARY
When Diplomacy Fails: Russian-American Proposals for U.N. Military Action
The evolving Russian-American strategic relationship promises new possibilities for
cooperation in international peacekeeping, peacemaking, and peace enforcement. To deal
with conflicts as diverse as Somalia, Bosnia, and the Persian Gulf, however, the international
community will need a varied and highly flexible arsenal of conflict-resolution, nation-
building, and military-enforcement capabilities. A series of steps will need to be taken, in
particular, if the United Nations is to be in a position to carry out the very serious business
of military enforcement.
The Security Council should be selective in deciding when and where to intervene
militarily. When the Council decides to undertake an enforcement operation, it should do so
with sufficient application of force to be assured of a positive outcome. In this context, it
would be counterproductive for the UN to establish a standing or permanent supra-national
force because it is the direct involvement and commitment of the major military powers that
provide the military muscle and the political credibility for a multilateral enforcement action.
This linkage must be maintained if lives are not to be risked needlessly.
U.N. military capability needs to be strong enough and credible enough to provide an
effective deterrent to would-be aggressors and adaptable enough to be employed in a wide
range of contingencies. In this regard the United States and Russia should support U.N.
military enforcement operations as one of the official missions of their armed forces. As
called for by Article 43 of the U.N. Charter, they should indicate to the Council what forces
they are willing to make available, and undertake to have these forces prepared for
international duty through joint training and exercises with stand-by forces from other U.N.
member states. The commitment of these forces for specific missions should not be
automatic, but instead should be conditioned on the approval of the constitutional processes
of the member state.
The Security Council and the Military Staff Committee need to be reformed and
restructured if the U.N. is to conduct military enforcement successfully. To bolster its
political credibility, the Security Council should be made more representative of the entire
U.N. membership while remaining small enough for effective decision-making. The Security
Council also needs the best professional military input it can get. Consequently, the Military
Staff Committee should be reanimated and reinforced to allow it to play the role originally
envisioned for it in the U.N. Charter. By building an extensive staff of experts under the
Military Staff Committee, both the Security Council and the Secretary-General would have a
single center to call on for professional military advice.
The Security Council should authorize the Committee; (1) to facilitate the preparation
of special bilateral and multilateral agreements between the U.N. and the military contingents
of member states; (2) to establish guidelines for such forces; (3) to develop a set of operating
241
procedures for U.N. operations; (4) to initiate joint training exercises and programs for states
participating in U.N. enforcement actions; (5) to coordinate logistic support and the
equipment interoperability necessary in multinational operations; (6) to provide professional
military staff support for the Security Council; and (7) to keep the Council and the Secretary-
General informed and advised on military matters.
Regional organizations should be given a greater role in peacebuilding tasks, for
example by establishing confidence-building measures among neighbors following a conflict.
The risks inherent in having regional bodies or powers act as U.N. "deputies," however,
mandate that any enforcement action they undertake be with the explicit consent of the
Security Council.
Given the wide variety of contingencies for which U.N. forces are likely to be
needed, a multi-tiered system of stand-by forces will be necessary to ensure adequate
flexibility.
The first tier would be an immediately deployable, highly skilled, volunteer
force of 5,000-10,000 ground and airborne troops. Its primary mission would
be deterrence and preemption as part of a larger strategy of preventive
diplomacy, not long-term peacekeeping. It would be financed by a regular
annual assessment.
The second tier would be a rapid deployment force numbering some 50,000-
100,000, including air and naval support elements. This force would serve to
deter major aggression or to turn back a lower-level aggression, and would be
paid for by ad hoc assessments.
— The third tier would be drawn from member states in the extreme case of a
crisis with major global and regional repercussions requiring large-scale
combat. This force could number well into the hundreds of thousands and
would be paid for by the participating states and through special assessments
of the whole U.N. membership.
The first two levels of these forces -- those designated under Article 43 - would conduct
training exercises together on a regular basis, with operational command falling to officers of
the nation contributing the largest portion of the forces and individual units remaining under
a national commander within the overall integrated structure. The Secretary-General might
be asked to recommend a commander for a particular operation, but he would not serve as
the U.N's "commander-in-chief."
To accomplish the timely steps outlined above, the permanent members of the
Security Council - especially the U.S. and Russia - must take the lead. Once it is accepted
that the U.N. is the single best chance for securing a more orderly and principled
international system, the establishment of U.N. enforcement capabilities will be seen as a
logical step forward for Russia, America, and the world.
242
WHEN DIPLOMACY FAILS
Russian-American Proposals for U.N. Military Action
January 31, 1994
United Nations Association of the United States of America
Center for National Security and International Relations (Moscow)
United Nations Association of the Russian Federation
This joint report is the product of a series of intensive nfieetings between the Russian and American
participants over the past nine months. It builds on more than a quarter century of exchanges between
the United Nations Associations of the USA and of Russia (and previously of the Soviet Union) on key
political, security, humanitarian, and economic issues facing the United Nations community. This project
has been made possible by a generous grant from the John D. and Catherine T. MacArthur Foundation.
243
Russian-American Task Force on
United Nations Military Enforcement
Co-Chairs:
Edward C. Luck
President
United Nations Association of the USA
Sergey M. Rogov
President
Center for National Security Problems and International Relations
Deputy Director
Institute of the USA and Canada Studies
Col. Nikolay N. Babkin*
Deputy Chief of Department
Main Department of International
Military Cooperation
Ministry of Defense
Russian Federation
Adm. Leon A. Edney
Former Commander-in-Chief
United States Atlantic Command
Gordon Goldstein
Project Director for Security Council
and Non-Proliferation Affairs
United Nations Association of the USA
Lt. Col. Alexander A. Kasatikin*
Chief Expert
Main Department of International
Military Cooperation
Ministry of Defense
Russian Federation
Irina Y. Kobrinskaya
Senior Research Fellow
Institute of the USA and
Canada Studies
Gregory Kovrizhenko
Vice President
UNA of the Russian Federation
Jeffrey L:iurenti
Executive Director
Multilateral Studies
United Nations Association
of the USA
Sergey I-avrov*
Deputy Minister
Ministry of Foreign Affairs
Russian Federation
Col. Alexander I^zurievsky*
Chief of the Group
Main Department of
International Military
Cooperation
Ministry of Defense
Russian Federation
Vladimir N. Lobov*
General of the Army
Ministry of Defense
Russian Federation
244
Col.-Gen. Franc M. Markovsky*
Chief of the Main Department of
International Military Cooperation
Ministry of Defense
Russian Federation
Ronald I. Spiers
Former U.N. Under-Secretary-
General for Political and
General Assembly Affairs and
Secretariat Services
Irina V. Modnikova
Research Fellow
Institute of the USA and
Canada Studies
Sergey Oznobistchev
Director
Center for International
Security Issues (Moscow)
Alexander A. Piskunov
Former Deputy Chairman of the
Committee on Defense and Security
Russian Supreme Soviet
James Sutterlin
Fellow and Lecturer
International Security Program
Yale University
Former Director
Executive Office of the
U.N. Secretary-General
Maj.-Gen. Nikilai N. Zlenko*
First Deputy Head, Department
for International Military
Cooperation
Ministry of Defense
Russian Federation
I
Igor N. Scherbak*
Deputy Director
Department of International
Organizations
Ministry of Foreign Affairs
Russian Federation
Michael Sonnenfeldt
Vice Chair
United Nations Association
of the USA
* Participated in the Task Force in their individual capacities. The views
expressed in this report do not necessarily represent those of the
governments of the Russian Federation or of the United States.
245
THE CHANGING SECURITY AND
POLITICAL ENVIRONMENT
Since the end of the Cold War, the international system has evolved from
one dominated by bipolarity to one increasingly defined by multipoiarity. This
has both opened new possibilities and raised new challenges for multilateral
cooperation under the United Nations and regional organizations. In many
regions, stability is threatened by new, unforeseen, trends. Among these are
uncontrolled developments in the former Soviet Union; uncertainty about the role
of new centers of power; virulent nationalist, religious, and ethnic movements;
seemingly intractable differences between the North and the South; and
unrestrained weapons proliferation. Faced with this multiplicity of challenges,
the collective security system developed over the past 50 years - with the U.N.
at its center - has demonstrated its value in some circumstances and its
shortcomings in others.
The multipolar world that is emerging will be characterized by a greater
diffusion of power than was the bipolar system of the past four decades. Russian
and American reductions of strategic and general-purpose forces have reduced the
degree of superiority the two countries enjoyed over all other nations during the
Cold War. Over time, however, the reduction of excessive and burdensome
forces will play a positive role in enhancing the strategic positions of the United
States and Russia, permitting them to address pressing domestic and economic
priorities.
The end of the ideological confrontation has also opened the way toward
a new partnership for the maintenance of international peace. With the end of
their bilateral competition for influence around the woHd, the United States and
Russia now share major security interests in the management of the emerging
multipolar balance of forces. The evolving Russian-American cooperative
strategic relationship, confirmed by Presidents Boris Yeltsin and Bill Clinton in
Vancouver in April 1993 and again in Moscow in January 1994, promises new
possibilities for cooperation in international peacemaking, peacekeeping, and
peace enforcement. By working together, the United States and Russia can help
to build an effective global mechanism for the resolution and prevention of
international conflicts and, if necessary, for military enforcement of Security
Council decisions. This will require, first and foremost, a joint effort to
246
strengthen the United Nations and regional organizations.
Though the threat of global nuclear holocaust has diminished drastically,
international stability is far from assured. At a time of upheaval and uncertainty,
nuclear weapons and other mass destruction weapons on the territories of the
former Soviet republics give local conflicts there a global dimension, especially
if the Soviet nuclear arsenal remains divided among Russia, Ukraine, and
Kazakhstan. In this period of transition in world history, there are concurrent
crises and instabilities in many regions. Progress toward peace in some areas -
such as the Middle East, Central America, Indochina, and southern Africa --
stands in stark contrast to continuing tensions and instabilities in the Balkans,
Caucasus, Somalia, Liberia, Sudan, Afghanistan, and the Persian Gulf.
International collective security mechanisms have been severely strained both by
the demand for their services and by the complex and intractable nature of many
of these crises.
Few of these situations fit traditional models of interstate conflict for
which the collective security mechanisms of the U.N. and regional alliances were
designed. Some involve struggles over competing conceptions of sovereignty,
autonomy, and independence among new states or nationalist movements, often
based on ethnic, religious, tribal, or racial identities. In so-called "failed states,"
such as Somalia, the international community is seeking to provide humanitarian
assistance and domestic order, while assisting in the restoration of local
governmental authority. Today the most violent and persistent conflicts are civil
wars involving large-scale suppression of minority rights and deeply rooted ethnic
and religious animosities. Some conflicts, such as in Bosnia-Herzegovina,
demonstrate characteristics of both civil and international violence.
The international community cannot successfully deal with this range of
conflicts by the imposition of force alone. Since the political, economic, social,
and human rights aspects need to be addressed simultaneously with the military
and security problems, the U.N. is developing the concepts and tools for nation
building and for promoting democratization. Again and again, the United Nations
is being asked to engage in a two-dimensional strategy involving humanitarian
assistance and peace enforcement to deal with outbreaks of civil or subnational
violence. It is being called upon, in essence, to deal simultaneously with the
symptoms and the causes of violence using mechanisms designed to cope with
classical interstate aggression.
247
Given the great variety of present-day conflicts, the international
community will need a varied and flexible menu of conflict resolution, nation
building, and military enforcement capabilities. In terms of the level of force
involved and the degree of violence generated, these conflicts range from a rather
low to a very high level of intensity. Often unpredictable, they can escalate in
a very short time, causing large numbers of civilian casualties. While to date the
major powers have by and large declined to intervene unilaterally in most of these
situations, repeated efforts by others to change the status quo by use of force may
result in a new round of great power competition, a process that has already
produced two world wars in this century.
Thus the passing of the Cold War should be regarded not as "an end," but
as a return to history, with all the problems that historically have characterized
the multipolar worid. Old national, religious, and social rivalries, suppressed for
almost five decades by the rigidities imposed by the superpowers, are returning
to the foreground and blending with the new problems of micronationalism,
weapons proliferation, and terrorism. The resulting mix could be volatile for
international peace and security.
Management and settlement of these conflicts, given their deep roots, will
not be easy or quick. These tasks demand fresh concepts and more flexible
instruments, as well as their patient and persistent application. Unless the
international community uses the present window of opportunity, the world could
well return to a pattern of widespread and intermittent conflict. Coupled with the
diffusion of new technologies of mass destruction around the world, such a trend
could threaten the survival of humanity at the beginning of the third millennium.
It is imperative, therefore, to try to curb the buildup of arms in unstable regions
in order to make the task of peacekeeping and peace enforcement more feasible,
less costly, and less risky.
The strengthening of U.N. military enforcement capabilities will pay much
greater dividends if enmeshed in a broader set of steps to manage the multipolar
balance of power, such as the proposals to slow the proliferation of nuclear,
chemical, and biological weapons and missile delivery systems outlined by
President Clinton at the U.N. General Assembly in September 1993. It is
imperative to begin with the modernization of the United Nations, learning from
its successes and failures in peacemaking, preventive diplomacy, and
peacekeeping. The United Nations, after all, was created to manage a multipolar
balance of power, though it was paralyzed for almost half-a-century by the
superpower competition. The Charter established a remarkably flexible
248
institutional framework that has evolved through the years in response to changing
conditions and demands. It balances the conflicting requirements of world
security and state sovereignty, while providing a framework for cooperation
between global and regional security systems.
A half-century ago, the architects of the United Nations set out to create
the most ambitious system of collective security ever attempted in human history.
Recalling the failures of the League of Nations and determined to avoid a third
world war in this century, leaders such as Franklin Delano Roosevelt, Winston
Churchill, and Joseph Stalin gave the U.N. - largely through its Security Council
— the potential to become "the world's policeman" when there was consensus
among the five permanent members. In the Preamble of the Charter they pledged
"to unite our strength to maintain international peace and security." The central
purpose of the U.N., as defined in Article 1 of Chapter 1, is "to maintain
international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of peace." By giving
sweeping powers to the Security Council, made up of the world's major military
powers, the Charter sought to merge force potential and political authority in a
comprehensive system of collective security.
The Charter's bold and muscular vision, of course, bears little
resemblance to the divided and largely ineffectual U.N. of the Cold War years.
Whether the vision of 50 years ago can -- or should - be resurrected as a result
of the new East- West partnership remains to be seen. But there is little doubt that
more traditional tasks of preventive diplomacy, peacemaking, and peacekeeping
have broader applicability under today's more cooperative relationship among the
major powers. Consensus is easier to reach in the Council, and the demand for
U.N. security services has never been higher. Yet tough questions remain when
these demands far outstrip U.N. resources and the will of the member states. As
President Clinton noted in his 1993 General Assembly address:
Our nation has begun asking harder questions about proposals for
new peacekeeping missions: Is there a real threat to international
peace? Does the proposed mission have clear objectives? Can an
end point to U.N. participation be identified? How much will the
mission cost? From now on the U.N. should address these and
other questions for every proposed mission - before we vote, and
before the mission begins.
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Even more demanding and searching questions need to be addressed in the case
of military enforcement by the U.N., because their answers will have broad
implications and because there is little historical precedent on which to base a
judgment. Among the factors that need to be taken into account in designing
U.N. forces are their political and legal basis, financing, training, informational
and logistical support, organizational structure, and ~ perhaps most vexing -
command and control.
POLITICAL CONSIDERATIONS AND LEGAL BASIS
On the surface, the process by which the United Nations decides to
undertake enforcement action -- by a vote of the members of the Security Council
with each of the five permanent members possessing veto power -- seems simple
enough. Indeed, the 15 Security Council members have the authority to make
decisions regarding international peace and security that are binding on all 184
U.N. member states. Nations presumably vote according to perceived interests
and today, judging by the scope of issues addressed and resolutions adopted by
the Council, these overiap to a degree unprecedented in U.N. history. Yet a
series of incidents and controversies surrounding recent U.N. humanitarian and
enforcement operations suggests that nations' willingness to approve resolutions
in the Council does not always reflect their readiness to make sufficient human,
material, or financial sacrifices to carry them out. It is hard to calculate what
unilateral costs are worth paying for a universal good or what constitutes an
equitable sharing of the burden. Global, multilateral interests, moreover, just do
not seem to cut as deeply, in terms of generating domestic public and political
support, as do more traditional conceptions of unilateral strategic interests. The
resulting danger is that U.N. enforcement mechanisms will lack credibility and
that the threat of a multilateral military response will not serve as an effective
deterrent to would-be aggressors.
A second potential problem involves setting sensible and reasonably
consistent criteria for determining when and how military enforcement action
should be undertaken. While voting in the Security Council is more likely to
reflect perceptions of national interests than rigorous conceptions of international
norms, over time the authority of the Council will be undermined if its actions
are seen as reflecting a double standard or a narrow interpretation of the interests
of the big powers. Yet even if the Council tried to follow consistent standards.
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it will not command sufficient military and financial resources ~ even under the
most optimistic scenarios - to deal simultaneously with the multiplicity of
conflicts around the world. The need for U.N. enforcement will simply outstrip
the available resources, even if the U.N. has a permanent or standby force.
A number of points should be emphasized:
(1) The first goal of any U.N. enforcement capability should be to
deter inter-state aggression;
(2) Responding to such aggression, should it occur, should take
precedence over intervening in civil wars;
(3) The degree the crisis threatens broader international peace and
security should be taken into account, as should especially
egregious large-scale violations of fundamental human rights;
(4) The specific enforcement action should be clearly stated and
achievable;
(5) The unified command structure and rules of engagement must
be clear to all;
(6) U.N. enforcement actions must have sufficient forces and
staying power to succeed; and
(7) The enforcement action should be terminated when the
objectives are achieved.
Since the U.N. will need to be selective in deciding where to intervene, the
Security Council should have widely understood guidelines and a thorough
decision-making process. The member states, moreover, should be determined
to do the job right when the Council does decide to intervene, so that joint action
through the U.N. will be perceived as a credible way to enforce peace and deter
aggression. In this context, it would be counterproductive for the U.N. to
establish a standing or jjermanent supranational force because it is the direct
involvement and commitment of the major military powers that provides the
military muscle and the political credibility for a multilateral enforcement action.
This linkage must be maintained if lives are not to be risked needlessly.
251
The U.N. structure is based on a delicate balance between two
contradictory principles of international relations: (1) the universality of
membership and equality of all sovereign states under international law and (2)
a recognition of the hard facts of political reality, that some nations are much
stronger than others and cannot be forced to accept a majority decision that
threatens what they consider to be their vital security interests. In terms of
carrying out U.N. military enforcement operations, moreover, the most powerful
states will have to shoulder the largest military and fmancial burdens in most
cases. The failure of the League of Nations was essentially related to its
institutional blindness to this dilemma. In the post-Cold War multipolar world,
the use of military force by the U.N. will ne«l to be structured in a way that
takes into account these two principles.
Another problem is connected to the interrelationship between
"peacekeeping" and "peace enforcement. " These two notions differ substantially
in their essence and scope. Peacekeeping is undertaken with the consent and
cooperation of the p)arties to a conflict, after a cease-fire is operative. It therefore
requires only lightly armed forces, whose role is to monitor the peace, not to
compel the parties to end ongoing violence, as would be required in Bosnia-
Herzegovina. U.N. peacekeepers, often called "soldiers without enemies,"
perform essentially non-military functions in an effort to discourage incidents and
to prevent their escalation. As part of the peace process, peacekeeping is
designed to give diplomacy time to work and is generally intended as an interim
measure until a more lasting peace can be solidified. Never mentioned in the
Charter, peacekeeping services have come to be in great demand by the
international community, but it would be wrong to give peacekeepers tasks that
entail enforcement responsibilities.'
Peacekeeping is itself a product of the Cold War in the sense that it was
developed as a creative alternative to enforcement actions as envisioned under
Chapter VII of the Charter, which could not be invoked because of Soviet-
American tensions and repeated use of the veto. This lack of concert within the
Security Council during the Cold War tended to limit its role under Chapter VII,
even as the role of the Secretary-General tended to expand under Chapter VI.
' Because of their infrastructure and logistics capabilities, military forces are
increasingly being called upon to assist in humanitarian assistance and disaster
relief efforts, as in Somalia. These are not necessarily peacekeeping missions,
however, in the traditional sense of the term.
252
Enforcement operations raise a host of difficult political and legal
problems even though they were contemplated under the Charter.- Military
enforcement by definition is different from peacekeeping because it is not
preconditioned by an obligation to gain the consent of the parties to a conflict.
Enforcement under Chapter VII was envisioned as a decision by the international
community to invoke political, economic, or military sanctions to compel an
aggres^r to cease actions deemed to threaten international peace and security.
Military enforcement is just one ~ and the most extreme ~ tool under Chapter
VII for use by the international community.
Application of military force against an aggressor means use of troops and
weapons capable of fighting - and winning — a war. If the U.N. undertakes a
military enforcement effort, it should do so with sufficient application of force to
be assured of a positive outcome. Its forces, training, and doctrine should be
decisive, and preferably overwhelming. On the other hand, peacekeeping by its
very nature should be nonthreatening to the parties to a conflict and does not
demand war-fighting capabilities.
In many cases, military enforcement should be part of a broader effort
including economic, social, diplomatic, and political dimensions. The U.N.
mission may go well beyond the traditional task of restoring the status quo ante
bellum. Peace cannot be fully restored unless the causes of the conflict are
removed. Simply restoring the status quo ante may mean restoring injustice or
long-standing resentments. In that case, a restoration of the status quo ante
bellum may freeze the conflict temporarily, while sowing the seeds for the next
round of fightmg.
The ultimate goal of peace enforcement actions should be the restoration
of a durable peace and the establishment of a status contra bellum. This task is
the main purpose of U.N. post-conflict peace-building, defined by U.N.
Secretary-General Boutros-Ghali as "action to identify and support structures
which will tend to strengthen and solidify peace in order to avoid a relapse into
conflict." Among these measures may be arms control and confidence-building
^ The concept of "peace enforcement" as developed by Secretary-General
Boutros Boutros-Ghali in his An Agenda for Peace report differs from traditional
peacekeeping or from military enforcement under Articles 42 and 43 of the
Charter. It foresees the utilization of military force as a provisional measure in
order to ensure that the provisions of a cease-fire are maintained or secure
conditions for humanitarian assistance are provided, utilizing such force and
tactics as may be required.
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steps designed to discourage the parties from resorting to force to resolve their
differences.
Through the years, U.N. peacemaking and peaceVceeping missions have
frequently been undertaken in cases of civil war or subnational violence, but these
remain the most complicated cases for international intervention to handle. This
is especially true in situations, such as in Somalia, where there had been a
complete collapse of civil authority and the U.N. troops are trying to carry out
humanitarian, peacekeeping, and enforcement tasks simultaneously. It is this
multilayered complexity of the U.N.'s mandate that has made Somalia an
especially difficult and controversial operation, not claims that it is illegitimate
for the U.N. to intervene in a country that has no functioning government.
Elsewhere, however, tensions between government claims to sovereignty
and human claims to survival continue to be heard. The general trend has been
to expand international obligations to respond to human rights and humanitarian
emergencies -- what the French have termed "the duty to intervene" -- regardless
of national boundaries. If the U.N. were to develop any sort of standing or
permanent force, these questions would take on greater urgency. For if the U.N.
actually had on hand forces capable of intervention, then pressures would mount
again and again for it to use them. On the other hand, such a capability might
serve as a deterrent to bad behavior while adding an element of credibility to the
far-reaching resolutions of the Council.
While it may not be possible to work out a precise and consistent legal
basis for peace-enforcement interventions, it is important to make the effort and
to begin to identify the kinds of crises that could trigger Security Council action.
Among the documents that could help to define such a legal foundation are: the
U.N. Charter itself; the Convention against genocide; and the Geneva Convention
of 1949 and its Protocols on protection of civilian populations. Findings by
special U.N. missions or envoys of the Secretary-General concerning violations
of human rights norms and treaties may also serve as a basis for Security Council
actions. If these violations threaten international peace and security - for
example through refugees, arms flows, or the escalation of ethnic tensions in
neighboring states -- then they would clearly call for the Council's attention.
Violent repression of genocidal proportions, wherever it occurs, represents a
threat to international stability and norms. In extreme cases, threats to the
environment that lead to regional instability may also be cause for Security
Council sanctions, but probably not of a military nature. Among these might be
threats to nuclear power plants and hydroelectric stations, the damming of rivers,
254
and blatant acts, such as pollution of the Gulf and the destruction of oil fields by
Iraq, undertaken as a deliberate act of war.
INSTITUTIONAL CONSIDERATIONS
The U.N. Charter places the Security Council at the center of efforts to
build a more peaceful world. According to Article 24, "in order to insure prompt
and effective action by the United Nations, its Members confer on the Security
Council primary responsibility for the maintenance of international peace and
security, and agree that in carrying out its duties under this responsibility the
Security Council acts on their behalf." For the U.N. to be effective, a consensus
must first be built among all major centers of power, which are supposed to be
represented on the Council. Clearly efforts to build a concert of nations could
fail if several or even one great power actively resisted it. The veto power for
permanent members makes it less likely that a new great divide will split the
world organization. At times, moreover, military enforcement may require the
use of overwhelming force, which can be mobilized only if the most powerful
nations support the military action and none of the permanent members - the five
declared nuclear powers - actively oppose it.
The possible use of force by the U.N. underlines the need for changes in
the composition of the Security Council to provide for adequate participation in
the decision-making by those great powers that presently are not permanent
members. Global peace enforcement - whether through political, economic, or
military sanctions ~ and peacekeeping operations require the active financial,
political, and military support of Japan, Germany, and key countries in the
developing world. One alternative would be to give Japan and Germany
permanent seats in the Security Council, but without the veto, and to add an
additional non-permanent seat each for Asia, Africa, and Latin America,
increasing the size of the Council from 15 to 20 nations. To bolster its political
credibility, the Security Council should be made more representative of the whole
U.N. membership, while remaining small enough for effective decision-making.
It is also time to ensure that the largest economic powers are at the table when
important issues of international peace and security are discussed, so as to
maximize the possibilities for global consensus and to minimize the chances for
divisions among the major powers.
10
255
In addition to taking steps to make the Security Council more
representative, the increasing activity of U.N. peacekeeping forces and the
potential for U.N. military enforcement actions dictate a more substantive role for
the Military Staff Committee. According to the Charter (Article 47, paragraph
1), the purpose of the Committee is "to advise and assist the Security Council on
all questions relating to the Security Council's military requirements for the
maintenance of international peace and security, the employment and command
of forces placed at its disposal, the regulation of armaments, and possible
disarmament." It was designed, in other words, to have a central advisory role
in helping the Council carry out the U.N.'s chief mission. However, up to now
the Committee has not played any significant role in U.N. activities, even when
the Council has authorized the use of force. During the Cold War, it was
understandable that a body composed of representatives of the Chiefs of Staff of
the five permanent members could not function properly. The Council,
moreover, had less need for professional military advice in those days.
Under present conditions of increased cooperation among the five
permanent members on many issues and of growing interest in U.N. enforcement
actions, the role of the Military Staff Committee should be revisited. As noted
by Secretary-General Boutros-Ghali, it is time to reanimate and reinforce the
Military Staff Committee so that it can play its role as outlined in the U.N.
Charter. The Security Council today needs the best professional military input
it can get, on a full-time, year-round basis. This should be a well-integrated part
of the Security Council's work, not just something that has to be reinvented or
pushed aside in reaction to each new crisis.
According to the Charter, the Committee is "responsible under the
Security Council for the strategic direction of any armed forces placed at the
disposal of the Security Council," but that "questions relating to the command of
such forces should be worked out subsequently." So the five-nation Committee
was not to exercise command and control over U.N. military enforcement
operations, but, rather, to play a lead role in planning their execution and
organization.
The Military Staff Committee could play a useful role in coordinating the
support and participation of the military leadership of other countries, including
important regional powers, in enforcement operations. The Charter suggests that
representatives of countries other than the permanent members may be invited to
participate in the Committee's work when that would be helpful. Also, under the
authorization of the Security Council, regional subcommittees can be established.
11
256
This could facilitate closer linkages with regional organizations and groups, such
as NATO in the case of Bosnia, the OAU in Somalia, and moderate Arab
countries in Iraq, Kuwait, and the Gulf.
The reactivation of the Military Staff Committee would also help to clarify
the appropriate roles and division of labor between the Security Council and the
Secretary-General. Over the past year, key member states have provided the
U.N. with growing numbers of military officers to help rectify the institution's
paucity of military expertise at a time of greatly expanding field operations and
responsibilities. With the Committee moribund, these officers have reported to
the Secretary-General rather than the Security Council, giving his office a larger
role in military matters than envisioned in the Charter. By building a competent
military staff under the Military Staff Committee, both the Council and the
Secretary-General would have a single center to call on for seasoned professional
military advice.
Among their tasks, the Security Council might authorize the Committee:
(1) To facilitate the preparation of special bilateral and multilateral
agreements between the U.N. Security Council and those member
states that are ready to provide military contingents for U.N.
operations;
(2) To establish guidelines and standards for such forces;
(3) To develop a set of operating procedures for U.N. enforcement
missions;
(4) To initiate joint training programs and exercises for member
states that may participate in military enforcement under the U.N.;
(5) To identify and coordinate logistic support and equipment
interoperability requirements for multinational operations;
(6) To provide professional military staff support for the Security
Council; and
(7) To keep the Security Council and the Secretary-General
informed and advised on realistic military options.
12
257
A second underutilized part of the Charter is Chapter VIII on regional
arrangements. In the absence of a strong and united Security Council, states
banded together in regional alliances to provide for their mutual defense during
the Cold War years. A major task now is to find a way to link these regional
collective defense arrangements with a U.N. -centered global security system. In
some cases, a more extensive use of regional security organizations for
peacemaking and peacekeeping tasks under the aegis or authorization of the U.N.
could help forward crisis management and conflict resolution at the regional level,
easing the burden on the overworked Security Council. Regional organizations
might be especially helpful in peace-building tasks, for example by establishing
confidence-building measures among neighbors following a confiict. The positive
effect of United Nations collaboration with regional organizations could also lead
to better cooperation between regional institutions themselves, for example
between NATO, CSCE, and the CIS. The North Atlantic Cooperation Council,
which includes both former Warsaw Treaty members and NATO members, might
provide a promising avenue for reinforcing security throughout Europe.
While cooperation with regional organizations presents promising
possibilities, several caveats should be noted. Regional organizations outside of
Europe tend to be weak, and even strong groups, like NATO, can be divided
over regional issues, such as how to handle Bosnia. The very distance of the
U.N. from a conflict can be an advantage in the sense that it is not seen as having
a history of involvement or a vested interest in the outcome of a dispute, such as
local nations and groups might have. There are risks, in this regard, in any plan
to have regional powers appointed as "deputies" of the Security Council to police
their parts of the worid. In any case, it would be wise to observe the Charter's
caution that no enforcement action be undertaken by regional bodies without the
authorization of the Security Council. If there is to be enforcement, moreover,
it should be of resolutions of the Council itself.
SHAPING A UNITED NATIONS MILITARY CAPABILITY
The most comprehensive task for a new multilateral security system is the
elaboration of a new concept of conflict prevention and deterrence, taking into
account political and legal considerations as well as the military requirements for
conflict-management. At the same time, this concept should include clear-cut
definitions of threats and corresponding responses, including use of military
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258
force. Thus it will provide additional guidelines for the military doctrines and
military organizations of U.N. member states, many of which are grappling with
new military roles and missions in the post-Cold War era.
This especially concerns Russia and the United States with their huge
military potentials. Both of them possess substantial power projection
capabilities, which, unless they are coordinated, might be seen by some as
directed against each other. It would be helpful in this regard if the two countries
included support for U.N. military enforcement operations as one of the official
missions of their armed forces. This would be a step toward the integration of
military force potential and political decision-making mechanisms under
international law.
In this regard, it should be noted that the new military doctrine of the
Russian Federation adopted in November 1993 emphasized the importance of
support for "activities of the Security Council of the United Nations and other
international organizations to keep or restore international peace and security at
the earliest stage in the development of a dangerous situation or a conflict, " and
recognized the necessity for "the Armed Forces and other troops of Russia" to
participate in "peacekeeping operations under the U.N. Security Council
decisions."
A U.N. military capability needs to be strong enough and credible enough
to provide an effective deterrent to would-be aggressors and flexible enough to
be employed in a wide range of contingencies. Given that it is neither fmancially
nor politically feasible at this point - and some would say not desirable - for the
U.N. to maintain a major standing military force of its own, its capabilities will
have to be derived from those of its member states for the foreseeable future.
The relationships with major military powers, such as the United States and
Russia, will be of critical importance. If the permanent members of the Security
Council are unwilling to provide the necessary forces to carry out decisions they
voted for in the Council, for example, then the credibility and deterrent value of
Council actions will be seriously undermined. Likewise, it would be risky to
deploy a relatively small U.N. contingent in an enforcement situation unless the
assurances of timely military back up from the major powers are ironclad. A
defeat of U.N. forces in an enforcement action is unacceptable and could well set
back the effort to develop a multilateral enforcement capability for years to come.
Therefore it is essential that the development and use of U.N. forces should be
undertaken deliberately and professionally.
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259
Given the broad spectrum of contingencies for which a stand-by U.N.
force is likely to be needed, an approach that would provide for several tiers
based on degrees of readiness would provide the necessary flexibility.' The first
tier would be a small stand-by, immediately deployabie, highly skilled special
capabilities force. It would consist of between 5,000 and 10,000 ground and
airborne forces that could be dispatched quickly - in 24 to 48 hours — to a
trouble spot, if authorized to do so by the Security Council with the support of
the troop-contributing nations. Air lift and air support would have to be provided
by a member state (or states) with the necessary power projection cajjabilities.
Its primary mission would be deterrence and preemption as part of a preventive
diplomacy strategy. The purpose would be to demonstrate the degree of
commitment of the international community to a situation, not to serve as a long-
term peacekeeping force or as a serious enforcer (except in very small-scale
contingencies). These forces might be used to secure key government,
communications, or U.N. facilities, as well as embassies, airports, or ports; to
help implement economic sanctions; to assist evacuations of foreigners or
refugees; to monitor troop disengagements; or to protect the delivery of short-
term humanitarian relief.
The funding for this force would have to come from a regular annual
assessment, rather than from ad hoc sources. Countries providing logistics,
airlift, or air support would either be reimbursed directly from the U.N. or have
corresponding reductions made in their U.N. peacekeeping and peace enforcement
assessments. Thie troops should be organized in battalion-size units, whose
members volunteered for U.N. service, and provided from the combat forces of
a few member states.
It has been proposed by others that the U.N. establish a standing force
made up of individuals who volunteer for U.N. military service. The assumption
is that such a force would be more autonomous and less subject to the complaints
of national governments and publics once casualties were suffered. The latter
point is superficially attractive in light of recent Congressional and media
developments related to Somalia, but a U.N. force should not be seen as so
^his scenario is patterned after that presented in the UNA-USA report.
Partners for Peace, published in late 1992. However, it differs from the
recommendations of that report in several important resf)ects, the most significant
being that the forces discussed here would not constitute a permanent standing
U.N. force.
15
260
autonomous that the major powers do not feel an obligation to reinforce U.N.
troops when they are in trouble. Since the U.N. would have at best modest tier-
one forces, their security and credibility as a deterrent would depend on
maintaining a tight, not loose, linkage to the key member states and to credible
reinforcements.
The second tier of a U.N. enforcement capability would be rapid
deployment forces, numbering perhaps 50,000 to 100,000 troops, including
earmarked air and naval forces to support their operations. This would be a fast-
moving, militarily significant force that could be deployed in days or weeks,
serving either as a deterrent to forestall a major aggression or as a force capable
of turning back a lower-level aggression. It would be more heavily armed than
would be the proposed immediately deployable tier-one force.
The rapid deployment forces would be regular units of militarily
significant nations, recruited, trained, armed, and paid by their national
governments. When called to action by the Security Council, their costs would
be paid by ad hoc assessments, as is the current peacekeeping practice. They
would need to train and exercise together on a regular basis and to work on
integration of doctrines and on interoperability of arms and communications
equipment.
The third and last tier of predesignated forces might be called "the reserve
armed forces of the United Nations. " This would be a force numbering in the
hundreds of thousands drawn from member states to respond to a major crisis
with far-reaching regional and global repercussions entailing large-scale combat
with a militarily significant regional power, such as in Desert Storm. Forces of
this magnitude would be expected to be used to follow on an intervention by the
rapid deployment forces if the fighting escalates or if deterrence fails.
Presumably, the international community would rarely be prepared to climb this
far up the ladder of escalation, but visible preparations for such contingencies
might in themselves bolster deterrence in some cases. The costs of conducting
combat operations on this scale would be so large that they would have to be
borne by the participating member states themselves and their allies or, more
equitably, through special assessments of the whole membership.
One of the more sensitive political questions is who should command U.N.
troops undertaking enforcement missions. As noted above, the Military Staff
Committee is neither structured for this purpose nor specifically authorized by the
Charter to do so. Its role is to set the stage for the successful use of force by the
16
I
261
U.N., not necessarily to direct the players once the performance is under way.
It has generally been the tradition in U.N. peacekeeping and military enforcement
operations to cede the overall operational command to military officers of the
nation contributing the largest portion of the forces, with individual units
remaining under a national commander within this overall structure. This would
seem to be a reasonable model to follow in most cases, and the tactical command
assignment of forces in combat should generally be left up to commanders in the
field who are closest to rapidly developing situations. The strategic decision-
making regarding the nature of an overall mission should remain with the Security
Council, which may choose to seek the advice of a revived Military Staff
Committee. There may be special cases, such as the NATO role in Bosnia, in
which the use of an existing alliance command structure seems most sensible and
is authorized by the Security Council. The Secretary-General may be asked by
the Council to recommend a commander for a particular operation, but it was not
envisioned in the Charter that the Secretary-General himself would serve in the
capacity of U.N. commander-in-chief.
A related issue under current debate is the possibility of the United States,
Russia, and other key member states signing Article 43 agreements with the
Security Council, under which the member state would "make available to the
Security Council, on its call and in accordance with a special agreement or
agreements, armed forces, assistance, and facilities, including rights of passage,
necessary for the purpose of maintaining international peace and security." Since
no country has yet worked out such an agreement with the Council, the United
States and Russia might take the lead as the U.N.'s militarily most powerful
member states and, through this step, in effect define the meaning of Article 43
and set a precedent for the other members.
A number of concerns have been raised recently in various countries about
concluding an Article 43 agreement. First is that any automatic commitment to
send forces on U.N. missions would contradict the constitutional procedures in
some member states, including the role in the United States and Russia of the
President as Commander-in-Chief, and would bypass normal legislative processes
(in the United States, the War Powers Act). For large military powers,
moreover, it makes little sense to earmark particular units for U.N. action when
other units might be more appropriate for a given crisis because of where they are
deployed or what capabilities they possess. This concern could be addressed
through the development of a generic Article 43 agreement, but the constitutional
questions are more difficult to resolve. Even though the United States, Russia,
and the other permanent members can veto new U.N. operations and thus
17
262
preclude the calling up of their forces by the Security Council - a right not
enjoyed by a vast majority of U.N. member states - their political and military
leaders are still reluctant to cede responsibility for the lives of their forces to an
organization with little experience in military enforcement, especially without
knowing the nature of the crises or the command relationships in advance.
Making such agreements conditional rather than automatic would address
these problems. Under such an agreement, nations would indicate to the Security
Council what forces they have that might be relevant to future U.N. contingencies
and would undertake to have these forces prepared for international duty through
joint training and exercises with Article 43 contingents from other nations. With
ongoing contingency planning through a revived Military Staff Committee, the
Security Council would be able to consult in advance with key member states
about whether special units of predesignated forces under Article 43 might be
available to respond to an emerging crisis. Such conditional arrangements would
take the international community several steps forward from the current system
based on qd hoc-ery.
To accomplish the timely steps outlined above will require a degree of
commilment from the member states of the U.N., begmning with the five
permanent members, that has yet to be demonstrated despite all the glowing
rhetoric about the U.N.'s place at the center of a new world order. With the
U.N. on t!ie verge of bankruptcy and with the member slates owing the world
organization almost $2 billion in unpaid obligations, it is hard to contemplate
where the funds would come from for even a modest increment in U.N.
enforcement capabilities. The United States and Russia are both falling further
behind in their financial commitments to the U.N., especially for peacekeeping,
and others are following their lead.
If the nations of the world contributed even 1 percent of their current
military expenditures, the funds available to U.N. peacekeeping would double.
Whether or not nations should fund their peacekeeping operations through their
defense budgets rather than through their foreign ministries, as UNA-USA and
the Secretary-General have recommended, it is time for national leaders and
publics to recognize that multilateral peacekeeping and enforcement efforts may
serve as their first line of national defense. Support for multilateral efforts should
be considered one of the central missions of each member state's military
establishment. This recognition would be a first step toward giving life to the
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263
concept of multilateral security through a strengthened United Nations.
To make substantial progress toward realizing the Charter's blueprint for
a Chapter VII enforcement capability, publics and legislatures around the world
need to be convinced that this would serve their national interests and be cost
effective. They need to see clear progress toward U.N. management reform,
even as they come to recognize that a durable peace is worth the commitment of
at least a small fraction of the enormous national resources devoted for decades
to the Cold War struggle. National leaders need to articulate clearly the value of
international norms and principles for the post-Cold War era, when common
actions will be needed to defend an expanding range of common interests in
global stability. Publics will not provide the political support and legislatures will
not provide the financial wherewithal for U.N. operations, however, unless they
are convinced that these missions serve their national interests as well as shared
human and international values. Once it is accepted that the U.N. provides the
only practical route toward a more orderly and principled world, then the
establishment of U.N. enforcement capabilities will be seen as a logical and
essential step forward for Russia, America, and the world.
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264
About the United Nations Association of the USA
The United Nations Association of the United States of America is a national
organization dedicated to strengthening the U.N. system and to enhancing U.S.
participation in that system. UNA-USA carries out its action agenda through a
unique combination of public outreach, policy analysis, and international
dialogue.
UNA-USA is a leading center of policy research on the United Nations and global
issues, such as the environment, security, narcotics, development, and human
rights. It carries out high-level dialogues with scholars and government officials
from many parts of the world in order to identify fresh ideas and areas of
potential cooperation. Through a series of programs, UNA-USA brings together
leaders of business. Congress, and the U.N. community for discussions of
pressing problems on the international agenda.
With a growing nationwide network of Chapters, Divisions, and affiliated
organizations, UNA-USA reaches a broad cross-section of the American public.
The Association provides information and educational services on the work of the
U.N. and on other global issues for students, scholars. Congress, business
leaders, and the media. Each year it coordinates the observance of U.N. Day
(October 24) in hundreds of communities across the nation and Model U.N.
programs for tens of thousands of high school and college students.
John C. Whitehead William J. vanden Heuvel
Chairman of the Association Chairman of the Board of Governors
Elliot L. Richardson & Cyrus R. Vance
Co-Chairs of the National Council
Edward C. Luck
President
UNITED NATIONS ASSOCIATION OF
THE UNITED STATES OF AMERICA
265
FOREIGN
AFE\IRS
Wrong Turn in Somalia
JOHN R. BOLTON
JANUARY/FEBRUARY 1994
NO. 73107
Fortign Affairs is published six tiincs annually by the Council on Foreign Rebdons, Inc.
Vol. 73 No. lO 1994. This article may not be repioduced without express permission.
266
Wrong Turn in Somalia
John R, Bolton
FUNDAMENTAL DIVERGE. ;CE FROM BUSH
Since the end of the Persian Gulf War, pressure has mounted
to involve the United Nations in a growing number of countries
that are experiencing internal civil strife. Somalia is the paradigm
case. It is therefore extremely important to clarify the historical
decision-making record. What President Bush originally decided
and what the Clinton administration later did represent fiinda-
mentally divergent approaches.
The Bush administration sent U.S. troops into Somalia strictly to
clear the relief channels that could avert mass starvation. It resisted
U.N. attempts to expand that mission. The Clinton administration,
however, set about pioneering "assertive multilateralism" and efforts
at nation-building that led to the violenc-e and embarrassment that
ultimately ensued. These failures raise larger questions about the
United Nations' competence in more ambitious areas of peace
enforcement and nation-building, especially without enduring com-
mitments from the United States.
THE INITIAL U.S. RESPONSE
The LEGITIMATION of U.N. involvement in internal Strife evolved
as an extension of the duty to preserve international security. The
turning point came after the Gulf War, when the U.N. Security
John R. Bolton is a Washington attorney and was Assistant Secre-
tary of State for International Organizations in the Bush administration.
r
[56]
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Wrong Turn in Somalia
Council adopted Resolution 688 on April 5, 1991. Faced with massive
flows ot Kurdish refugees from northern Iraq into Turkey and Iran and
harsh militar)- assaults against Shiites in southern Iraq, the council
acted swiftlv. For the first time, the Security Council declared that a
member government's repression of its own people, resulting in urgent
humanitarian needs, constituted a threat to international peace and
securit)'. Resolution 688 condemned the government of Iraq,
demanded that it immediately end its repression, insisted that Iraq
"allow immediate access by international humanitarian organizations,"
and requested that the secretary-general pursue humanitarian efforts.
Clearly, large refugee flows with potentially destabilizing effects on
Turkey's control over parts of its territory justified the U.N. assess-
ment. This action nonetheless constituted U.N. intervention in an
essentially domestic conflict — an area that the text of the U.N. Char-
ter leaves unclear. In an artfully balanced passage, Article 2 provides:
"Nothing in the present Charter shall authorize the United Nations
to intervene in matters which are essentially within the domestic
jurisdiction of any state. . . ." But the charter then goes on to state,
"This principle shall not prejudice the appHcation of enforcement
measures under Chapter VII." Although ambiguous to say the least,
Article 2 implies that an internal dispute must threaten interests out-
side a country's borders before the Securirv Council's jurisdiction can
be invoked. But the precedent set in Iraq had left the principle of U.N.
nonintervention substantially weakened.
Then came Somalia. The Security Council achieved little progress
in early and mid-1992 brokering a ceasefire among the warring clans
and subclans. General Mohamed Farah Aideed rejected the deploy-
ment of peacekeepers (the U.N. Operation in Somalia, or unosom)
until fall. By not deploying unosom, the secretary-general followed
standard peacekeeping procedures: no "blue helmets" would be
deployed unless all parties consented. The result was that the civil war
in Somalia continued unabated, humanitarian assistance could not be
deli\ercd, thousands of Somalis died of disease and starvation, and
the threat to hundreds of thousands more grew daily. So weak was the
international presence that Somali gangs freely attacked U.N.
facilities, stealing trucks, food, and fuel supplies.
FOREIGN AFFAIRS Janunry/Fehruary jgi)4 [57]
268
John R. Bolton
When a 500-man Pakistani battalion was finally deployed in early
October 1992, it was pinned down at the Mogadishu airport. General
Aideed later took offense that the United Nations had negotiated with
the Hawadle subclan for security at the airport rather than direcdy
with him. Convinced that the United Nations was predisposed against
him, Aideed objected to the deployment of 3,000 additional peace-
keepers authorized by Security Council Resolution 775. Fighting
throughout Somalia led other troop contributors, such as Canada and
Belgium, to defer sending their forces since there was obviously no
peace to keep. (Earlier in 1992 a top aide to Aideed had said that if
armed U.N. forces were sent in, coffins should be sent as well.)
In November, State Department careerists argued for dispatching
a major U.N. military force — including American troops — to Soma-
lia to distribute humanitarian assistance direcdy. The Pentagon pro-
posed that a U.S. -led coalition outside of the United Nations distrib-
ute aid, the expectation being that the United Nations would replace
U.S. forces after a very short time. On November 25 President Bush
approved this option, provided that the secretary-general also agreed.
That afternoon, the Security Council had met to consider a very
pessimistic report on Somalia. The secretary-general wrote that "the
situation is not improving" and that conditions were so bad that it
would be "exceedingly difficult" for the United Nations' existing
operation in Somalia to achieve its objectives. "[I]t may become nec-
essary," the report said, "to review the basic premises and principles
of the United Nations effort in Somalia" — a thinly veiled reference to
a complete withdrawal of U.N. personnel.
Against this foreboding backdrop. Acting Secretary of State
Lawrence S. Eagleburger presented the Bush plan to Boutros-Ghali.
The United States was prepared to deploy up to 30,000 troops
(including troops from other nations) to secure key ports, airports,
roads and aid distribution centers in central and southern Somalia.
This carefully circumscribed mission was intended to stabilize the
military situation only to the extent needed to avert mass starvation,
and the United States expected to hand the matter back to the United
Nations in three to four months. What the United States was propos-
ing was more than sending in several hundred trucks and drivers to
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269
Wrong Turn in Somalia
distribute aid, but less than pacification and occupation. The United
States would conduct the mission peacefully but was prepared to use
"harsh" force if necessary to prevent interference with its objectives.
Eagleburger stressed that the United States would not proceed if the
secretary-general opposed the plan.
Boutros-Ghali asked whether the U.S. deployment would be a
U.N. operation or under American command. Eagleburger responded
unequivocally that the United States would command. Boutros-Ghali
then asked what would happen after President Clinton's inauguration
on January 20, 1993. Eagleburger stressed that the United States was
prepared to proceed now; if Clinton disagreed, all American forces
would be withdrawn by January 19. Boutros-Ghali was positive about
the plan, saying "such a force could obtain stability very quickly. I
know Somalia. I have been there many times."
There was no consideration of disarming the various Somali fac-
tions. There was no discussion of a U.S. presence in the northern
secessionist region of "Somaliland." Finally, there was no mention
whatever of "nation-building." President Bush authorized and Eagle-
burger proposed to the secretary-general an American-led operation
limited in mandate, time, and geographical scope.
ENTER THE UNITED NATIONS
After a Thanksgiving weekend of intense activity, on Novem-
ber 29 the secretary-general offered the Security Council five options
on "how to create conditions for the uninterrupted delivery of relief
supplies to the starving people of Somalia." The first three options
were to intensify efforts to deploy unosom fully under existing U.N.
rules of engagement, to withdraw all unosom military elements and
let the humanitarian agencies make the best deals possible with the
warlords, or to have unosom mount a show of force in Mogadishu
to convince the warlords to take the U.N. effort seriously. Boutros-
Ghali discounted these options.
The secretary-general's fourth option was essentially the Ameri-
can proposal of a U.N. -authorized action of member states, although
he expanded it into a nationwide "enforcement operation." The
FOREIGN affairs January/Fehruary 1^94 [59]
270
John R. Bolton
enabling resolution he suggested would give authorization for only "a
specific period of time," and only in order to "resolve the immediate
security problem." The fifth option — and the secretary-general's
explicit preference — was "a countrywide enforcement operation to be
carried out under United Nations command and control."
Reactions to the American proposal and the secretary-general's
letter were sometimes confijsed, but the permanent members of the
Security Council moved swifdy to draft a resolution authorizing the
American operation. During this week, for the first time, the secre-
tariat began urging that the coalition essentially disarm the Somali
factions before handing the operation back to the United Nations.
The United States declined to make any such commitment. Thus, the
Security Council unanimously adopted Reso-
When the secretariat ^"'^^" 794 on December 3. 1992. reflecting the
approach bagleburger origmally proposed,
urged that the coalition The preamble said the Security CouncU's goal
disarm the Somalis the ^^^ ^^ establish "as soon as possible the neces-
sary conditions for the delivery of humanitar-
L nitcd States declined, ja^ assistance." To accomplish this, the Secu-
rity Council drew upon Chapter Vll of the
charter, authorizing the participating states to use "all necessary
means." Fully intending the coalition military effort to be brief, the
Security Council requested the secretary-general to submit a plan
within 15 days for turning the operation over to the United Nations.
The next day, President Bush wrote to the secretary-general: "I
want to emphasize that the mission of the coalition is limited and
specific: to create security conditions which will permit the feeding of
the starving Somali people and allow the transfer of this security fimc-
tion to the U.N. peacekeeping force." The president also wrote that
U.S. "objectives can, and should, be met in the near term. As soon as
they are, the coalition force will depart from Somalia, transferring its
security fiinction to your U.N. peacekeeping force." TTie U.S. position,
m both the council's resolution and the president's letter, was clear.
American forces entered Somalia on December 9. Later that day,
however, the secretary-general told a delegation from Washington
sent to brief the secretariat that he wanted the coalition not only to
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271
Wrong Turn in Somalia
disarm all of the Somali factions, but also to deflise all mines in the
country (most mines were in the secessionist north), set up a civil
administration and begin training civilian police. The secretary-gen-
eral also conveyed these ideas in a letter to President Bush. While the
United States had contemplated some disarming to protect its troops,
the secretary-general clearly had far more ambitious plans. Adding
these new tasks would undoubtedly mean lengthening the U.S. stay
in Somalia, thus delaying a handoff to U.N. peacekeepers.
Within days, numerous press stories revealed a growing rift between
Washington and the United Nations. Secretariat officials were appar-
endy concerned about the policy of the incoming Clinton administra-
tion toward Somalia. In a meeting with the secretary-general on
December 22, Secretary Eagleburger reiterated that the United States
saw its mission as very limited, and he stated a desire to work coopera-
tively with the secretariat to facilitate the hand-over to "unosom 11."
When the hand-over took place, he said, the United States was prepared
to entertain specific requests for logistical support, but that was all.
As in the first meeting between Eagleburger and Boutros-Ghali,
what was not discussed is as important as what was discussed. Again,
no discussion of nation-building or anything remotely like it took
place. There was considerable conversation about what unosom ii
would actually look like. The secretariat foresaw something very like
a traditional, small-scale U.N. peacekeeping operation. Department
of Defense officials believed that such an approach would not work
and wanted a much more muscular operation. This dispute was
largely a clash between the military cultures of the United Nations
and the Pentagon. The point, however, is that both sides were trying
to define unosom ii so that the hand-over could proceed as swiftly
and efficiently as possible. The United States was not discussing
extending its mandate either in scope or in time.
As the Bush administration came to a close, humanitarian
assistance was regularly flowing to critical areas. Mediation efforts
were progressing, with all major factions agreeing to a conference on
national reconciliation in mid-March. U.S. forces were already with-
drawing, replaced by troops from other nations. Many of these
nations would automatically become part of unosom ii when the
FOREIGN AVTWK% January/February i<f94 [6l]
272
John R. Bolton
handoff took place. Thus, by January 20, while Somalia was by no
means solved, the original plan and schedule were still on track.
THE CLINTON ADMINISTRATION SHIFTS
The Clinton administration entered office determined to
concentrate on domestic policy, but it had also campaigned for a for-
eign policy that became known as "assertive multilateralism."
Nonetheless, in its early days, the new administration continued to
press the United Nations for a rapid hand-over to unosom ii,
although some advocated that a substantial U.S. logistical presence
remain. They were still skeptical that the United Nations was up to
the job — continuing evidence of the clash of military cultures
between the Pentagon and the secretariat. By late February, fighting
among the Somali factions and wath the international force led some
U.S. officials to believe an even larger American contingent needed
to remain to assist the United Nations.
These were the first signs that the original plan — to be out within
three or four months — was changing. The real shift, however, came
on March 26, when the Security Council adopted Resolution 814,
largely because of American pressure. The resolution called on the
secretary-general's special representative "to assume responsibility for
the consolidation, expansion, and maintenance of a secure environ-
ment throughout Somalia." The resolution also requested that the
secretary-general seek financing for "the rehabilitation of the politi-
cal institutions and economy of Somalia." The new U.S. Permanent
Representative to the United Nations, Madeleine K. Albright, said
unequivocally, "With this resolution, we vsdll embark on an unprece-
dented enterprise aimed at nothing less than the restoration of an
entire country as a proud, functioning and viable member of the com-
munity of nations." Not only did the Clinton administration endorse
"nation-building" in Resolution 814, it contemplated that 8,000
American logistical troops would remain, along with a i,ooo-man
quick- reaction force, a major change from the original idea of essen-
tially complete withdrawal. The initial cost now was estimated at
$800 million, of which the United States would be assessed just under
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273
a third. There was little or no consultation with Congress about this
major change in direction, and very little press reporting. The actual
hand-over to unosom ii dragged on until May 4.
Only weeks afterward, violence broke out again in Mogadishu and
other parts of Somalia. On June 5, forces believed to be under the
commandofGeneralAideed attacked unosom ii, killing at least 23
Pakistani peacekeepers and wounding scores more. Acting swiftly, the
Security Council adopted Resolution 837 on June 6, authorizing the
arrest of Aideed and others responsible for the attack. U.S. combat
forces returned to strike positions believed to be held by Aideed fol-
lowers. There was again little or no consultation with Congress.
These two resolutions, coming in the early days of the Clinton
administration, marked a pronounced shift in American policy. This
was not simply "mission creep" into another international quagmire,
but a deliberate experiment in "assertive multilateralism." Now the
United States had done more than commit itself to the vague and
expansive language of the "nation-building" resolution. Through
Admiral Jonathan Howe, the American serving as the secretary-gen-
eral s new special representative — a strong advocate of punitive action
against Aideed — the United Nations had effectively taken sides
against Aideed in retaliation for the ambush of the Pakistani peace-
keepers, thus making it simply another armed Somali faction. The
FOREIGN AFFAIRS January/ February 1^4 [63]
274
John R. Bo/ton
United Nations lost its role as an honest broker by militarily opposing
Aideed, Nation-building was to be complicated enough, but the U.N.-
U.S. force was now going to have to attempt that project under com-
bat conditions, at least in Mogadishu. Nonetheless, Admiral Howe
remained confident; he was quoted in Newsweek on July 12 saying,
"We're going to do the job, and the rest of the country will follow."
Military operations continued throughout the summer, sometimes
directed against civilians, usually accompanied by statements about
Aideed's forces having been badly damaged. Now, however, members
of Congress began to stir; Senate President pro tem Robert C. Byrd
(D-W.Va.) called for the withdrawal of
Two U.N. resolutions American forces, referring specifically to
President Bush's plan for only a very brief
in the early days of the American humanitarian mission. U.S. and
Clinton administration U.N. casualties mounted, and Aideed
1 1 r\M'Uf^ t remained at large. More U.S. forces were
committed, including elite Ranger units,
experiment in "assertive Despite these problems, the Clinton
multilateralism" administration held steadfast to its broad pol-
icy objectives. In a major address on August
27, Secretary of Defense Les Aspin said: "We went there to save a
people, and we succeeded. We are staying there now to help those
same people rebuild their nation." He added, "President Clinton has
given us clear direction to stay the course with other nations to help
Somalia," thus removing any earlier doubts that the president was not
fiilly engaged with his administration's policy.
"Stay the course" is exactly what the administration did, despite the
parade of headlines announcing new casualties and growing, biparti-
san congressional concerns. In the single most compelling piece of
evidence of its continued commitment to its redefinition of the mis-
sion, the administration pushed the Security Council to adopt
Resolution 865 on September 22, effectively locking in a "nation-
building" U.N. presence in Somalia until at least 1995. That resolu-
tion reaflirmed the Security Council's endorsement of continuing
"the process of national reconciliation and political setdement" begun
earlier. The resolution stressed that the highest priority for unosom
[64] FOREIGN AFFAIRS F«»/«m*7jAfc.i
275
Wrong Turn in Somalia
II was to assist "in the furtherance of the national reconciliation
process and to promote and advance the re-establishment of regional
and national institutions and civil administration in the entire coun-
try" as outlined in the original "nation-building" resolution, 814.
Three days later, Somali militiamen shot down a Black Hawk heli-
copter, killing three Americans. All of these events were taking place
in the context of confused administration efforts (culminating in the
president's September 27 speech to the General Assembly) to articu-
late more fully what its larger peacekeeping policies actually were.
By this point, the White House was clearly worried, but not wor-
ried enough to avert the October 3 disaster in which at least 17 Amer-
icans were killed, and many more wounded, in a fierce firefight in
Mogadishu. One American was taken hostage, and one of his
deceased comrades was dragged naked through the capital's streets,
appearing in media pictures around the world. This time, bipartisan
congressional anger erupted, and the Clinton administration's efforts
to defend itself failed. The Wall Street Journal xt^ovxtd on October 7
that lawmakers who attended a congressional briefing on October 5
said Secretar)' Aspin was "confused and contradictory" and that War-
ren Christopher "sat virtually silent." The administration
immediately reached for new options, deciding to double the total
American military presence in Somalia and offshore, while announc-
ing the intention to withdraw entirely by March 31, 1994. "Nation-
building" had thus become a desperate search for a face-saving Amer-
ican withdrawal, exactly one year after Americans would have
departed under President Bush's original plan.
THE LESSONS
Certain key judgments emerge from the record of the Amer-
ican intervention in Somalia to date:
First, the original, limited mission proposed by President Bush was
deliberately and consciously expanded by the Clinton administration.
Although incrementalism marks most foreign policy decision-making,
the shift in American policy in March and June 1993 was deliberate,
and it reflected what Clinton's national security decision-makers
FOREIGN KT?A\KS January/February igg4 [65]
"*'/
276
John R. Bolton
believed was consistent with the president's broad policy outlines.
Second, the role the Clinton administration envisioned for the
United Nations in Somalia was a "peace enforcement" role, akin to
the original American-led coahtion mandate, rather than a more tra-
ditional "peacekeeping" role. Whether the United Nations was ready
for such a role is now very much open to question. But more is at stake
than the competence of the United Nations. We must now question
whether in fact it is sensible to ask the United Nations to engage in
peace enforcement when the principal military muscle for such an
operation is unable politically to sustain the risks and casualties that
peace enforcement necessarily entails. The Clinton policy expanded ^
the U.N. role dramatically but brought the United States to the verge \
of withdrawing without having seen that larger role through success-
fiilly. Many of the same arguments have recently been raised about
Clinton administration policy in Bosnia and Haiti. This reflects no
credit on the United States.
Third, whatever the real meaning of "assertive multilateralism,"
that policy died an early death in Somalia. U.S. experience there
demonstrates the hard truth that the United Nations works only when
the United States leads fhe organization to a final conclusion. There is
no multilateral system with a life and will of its own. There is only lead-
ership by one or more like-minded nations that persuades the United
Nations' other members to follow. Within the U.S. system, Congress
wants American leadership — whether through the United Nations or
otherwise — only where clear American national interests are at stake.
Finally, we must now ask whether a United States-led coalition can
truly hand over an operation to the United Nations and then wdthdraw.
A distinct minority within the Bush administration was skeptical of
the original American deployment precisely because of concern that it
would be much easier to get into Somalia than to get out. The real les-
son of the American experience in attempting to relieve the famine in
Somalia is that any administration must play out the long-range con-
sequences even of humanitarian decisions because of the complex
political and military consequences inevitably entailed. Somalia was
the wrong place at the wrong time for the Clinton administration to
experiment. The American dead prove that point.®
[66] FOREIGN AFFAIRS Fo/ttm('7jM>.7
I
277
«
^ ft,
^
V3-
278
Rowland Evans and Robert Novak ''l^^hl
Russia After Sarajevo
Behind Boris Yeftsin's tnumph in
Bosnian peacekeeping Kirics big trouble
for BiD Clmum that the presidenl's ha-
rassed pohcy makers have not yd bced
up to.
The Russian presxient intends to use
his Bosnian triuinph as the key to unkxk
a door much larger than Sarajevo. He
wants United Nabons and Westeni sup-
port for Russian "peacekeepmg' through-
out the cM Soviet Unioa
That IS the bottom-hne objective d the
Russian mflitary and its nationalist back-
en, inchxling Vladimir Zhirinovsky.
Thanks to the Bosnian operatioo, they
have now established thor credentials.
This poses a threat to Cbnton, whose
Russian policy is bnked to Yeftsin. The
day Yehsm and his mi&tary st^ke a vabd
claim to being UJ^ -hacked "^exAee^
ers' throughout the oU imwn. Omton
wiD encounter a chilling dilemma.
If Russian ^leac^eepers* are sent
into the Cnmea against UkiaiDe or to
Kazakhstan to "protecf the large Rus-
sian minority there. CBnton wiD bee
these options; Tell Yehan. the [»op <rf
his Russan policy, to withdraw, or coun-
tenance aggression.
Ths is not ^ a bad dream far
Washington. Recently in the Georgian
capital of Tbdisi, Presxient Eduard Shev-
ardnadze told a prominent American visi-
tor that he had been forced to jam the
Commonwealth of Independent States
(CIS) by the mterventjon <A Russian
"military surrogates' m Abkhazia in
northwest Georgia. ShevardnadK said
that if he had not pined the CIS. these
surrogates di Moscow woukj have "de-
stroyed" Georgia.
Cbnton. reacting to ths incursion on a
sovereign state recognized by the United
States and the worid. had praised Yehsm
f« helping to defuse the Abkhazian upris-
ing. Not one word di cntidsn. much less
recrimination, came from the Clinton
admimstration. The sileooe was duly not-
ed in Moscow.
Shevardnadze, a confidant otf fcrmer
President George Bush, told his Ameri-
can visitor: ^Commenting as a friend di
the U.S.. I want a higher U.S postiire'—
referring to both inside and beyond the
reabn of the old Soviet Union. The
UxToex Soviet foreign nanistei, who did
more than any one else to secure reunifi-
cabon di East and West Germany, had
another piece di a<Jvice: The United
States shoukj "nd ftself of the no6on
that to strengthen and stafadiK Ukrane
is to be "anti-Russiaa'
The Clinton pattern of kioking the
other way when Moscow flexes its mus-
cks is most egregious in Moklova. No
(^Kstioas have been raised here about
the presence of Russia's 14th Army in
Trans-Dneister, an endave insMle Mol-
dova.
On Feb. 14. CoL Gen. Geagi Koo-
dratev. the d^Hity Russian defense min-
Eter who runs peacdteepmg operatuns.
toM an assembly of 14th Army x£xxts.
"The Russian army has been, is and wiQ
be here." He said Moscow is about to
demand army bases in Moidova. That
news was met by silence in Washington.
It is irrelevant whether Yetain hmisetf
approves such presumptiwus behavior.
As of today, he appears to be a prisoner
of mihtary-natmrvaJist forces. The mili-
tary saved him m the October shootout
against parliamentary leaders holed up m
the White House. Then, the December
dectioa lOstaDed a hard-lne nationalist
majority in the new parliameiiL
If iDore proof of the Russian presi-
dent's dependent status were needed.it
came with the extraordinary blanket par-
dons, overwbelmingjy voted by the new
parliament, for hanJ-tneis charged with
treason n the 1991 and 1993 cnq)
attempts.
Indeed, even Foreign Minister Andrei
Koeyrev. deemed to be pro-American
and anb-natknalist, is running for cover.
Early this nwnth, he chastised Viices in
the West . . . teachmg us about the rules
of good behavior. We do not need any
lessons about the rules of the XSH. What
we need is practical asastance in the
imirfementation of those rules in tlv
Caucasus and the entire post-Soviet ar-
ea." That means U>J. sanctioning of
peacekeeping as defined by Moecow.
Such claims shouU surprise no one.
The surprise is American sOence. As
fwmer National Security Adviser Zbig-
niew Brzezmski writes in the forthcomng
issue of Foreign Affairs; "Present U5.
grand strategy is flawed in its assump-
tions, focused on the wrong goal and
dangerous in its likely ccnsequeitces.'
Moscow, enjc^ring worldwide praise for
saving Sarajevo, must agree.
019M.CreaunSi
I
BOSTON PUBLIC LIBRARY
3 9999 05982 848 1
ISBN 0-16-044691-0
9 7801 60" 44691
90000
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