the law and politics of a u.s. intervention

THE LAW AND POLITICS OF A U.S. INTERVENTION: THE CASE OF GRENADA

Maurice Waters Wayne State University

The military intervention of Grenada in October 1983 by the United States brought forth great oratory from critics and from supporters of the action in the U S . administration, in Congress, and among segments of the public. Both sides made “instant” analyses in speeches and writings immediately thereafter. The official government position had the characteristics of a smooth, well- planned explanation, with only an occasional hitch. It argued the legitimacy of the position essentially on three grounds: (1) hundreds of Americans, many of them students attending a medical school in Grenada, were possibly in danger because the more moderate faction of the communist government of Grenada had been ruthlessly overthrown by a radical group that was dangerous and untrustworthy, (2) the eastern Caribbean states who had not felt threatened by the previous Grenada government invoked provisions of their collective security treaty against this member state and asked the United States for assistance, and (3) the governor- general of Grenada asked for outside military assistance, this being a request within the scope of his office. The United States responded affirmatively. Supporters of the administration added a fourth ground, namely that under international law as provided by the United Nations Charter and other treaties, a violation of humanitarian rights had occurred. Therefore sufficient grounds existed for a military intervention to uphold those rights.

It should be noted that this writer has found numerous errors of fact and of law in the statements, official and unofficial, which were

PEACE & CHANGE, Vol. 14 No. 1, January 1989 65-105 0 1989 Conference on Peace Research in History and Consortium on Peace Research, Education and Development

65

66 PEACE AND CHANGE /January 1989

offered immediately after the intervention. Once again truth became the “first casualty of war.” This should remind all who are engaged in foreign policy research that rushing into print or public debate has serious drawbacks. Whereas government spokespersons feel they must offer explanations of their policies as soon as the policies become known, i t is not necessary for the concerned nonparticipant to “buy” those explanations or conclusions.

BACKGROUND

Grenada is an island of the eastern Caribbean that has had a long history of foreign exploitation and domination. Discovered by Columbus in 1498, it was frequently fought over by the British and French, with the former finally achieving control from 1783 until 1974.’ Little growth in democracy occurred until the twentieth century, when such people as Albert Marryshaw, Uriah Butler, and Eric Gairy took up the struggle for greater local political participation. Indeed, Gairy became a hero and developed a political party called the Grenada United Labor Party or GULP. He managed to get political control under the British and was the dominant government figure during the subsequent (1960s) decade. In 1967 Grenada was given associated statehood and Gairy became the premier.* He used his position to build a private police force that in turn was used to beat down any political opposition. But an opposition, nevertheless, did develop under the leadership of Maurice Bishop, who had returned from England with a law degree; he joined with other leftist-leaning persons to form a loyal opposition and to try to bring about political change both in Grenada and in the eastern Caribbean.3 Their political movement, which was called the NJM or New Jewel Movement, promised a program of vast economic, social, and political change.

In the early 1970s Britain agreed to allow Grenada to be independent. When elections were held Gairy won the position of prime minister. He continued to use force against the opposition; a commission of inquiry that he appointed severely condemned his

Waters I A U.S. INTERVENTION 67

practices. But now that Grenada was independent, there was nothing that Britain would or could do to reduce Gairy’s power or remove him from office, and in 1974, the year of independence, Grenada was accepted as a member of the United Nations and of the Organization of American States (OAS). His status was also recognized by the other eastern Caribbean governments. In addition, all of the Commonwealth governments recognized the Grenada government, as did the United state^.^

In 1976 elections were held in Grenada, and the opposition, led by Bishop, greatly increased its share of the vote. In March 1979, while Gairy was away from Grenada, the People’s Revolutionary Government (PRG) seized power and named Bishop as the new prime minister. It is reported that the mass of the population cheered when news came to them over Radio Grenada. A new set of people’s laws was introduced in Grenada and the constitution that had been established with Grenada’s independence was suspended. The governor-general, Sir Paul Scoon, who had been appointed by Gairy just a few days before Gairy’s overthrow, was permitted to continue under the Bishop government, but with a reduced role. The new U.S. administration in Washington, D.C., under Jimmy Carter, recognized the Bishop government, as did the other governments of the Caribbean. However, it is reported that Bishop was warned not to establish close economic and political ties with Castro’s Cuba and that if in fact he did establish such ties, U.S. pressure would be brought to bear. In fact, that is precisely what the U.S. administration did. As relations with Castro warmed, so did they worsen with the United States, and when Grenada voted with the Soviet Union on issues before the United Nations, and in particular refused to condemn the Soviet Union’s intervention in Afghanistan, the United States’ relations with Grenada became increasingly strained.

When the administration under Ronald Reagan came to power in Washington, the new president’s distaste for the Bishop government, because of its political philosophy as well as its close ties with Cuba and the Soviet Union, brought severe repercussions to Grenada. Reagan not only refused to accept the Grenada

68 PEACE AND CHANGE / January 1989

ambassador’s credentials in Washington, but would not send a diplomatic mission to Grenada, maintaining political contact only through the U.S. embassy in Barbados. In addition, the Reagan administration denied Grenada participation in the Caribbean Basin Initiative, an economic aid program provided by Washington for the Caribbean, and likewise attempted to block Grenada’s efforts to obtain aid from the World Bank and the International Monetary Fund.s The hostile rhetoric from Washington greatly increased, and the United States held naval exercises in the Caribbean, which were interpreted by the PRG as a clear sign of an attempt to intimidate the new government of Grenada.6

Although political and economic conditions in Grenada seemed to improve after the Bishop takeover, by 1983 these improvements no longer continued. Subsequently, a split developed in the PRG leadership, with the opposition faction led by Bernard Coard becoming highly critical of Bishop. While Bishop was away on a tour, plans apparently were made by the Coard faction to demand that Bishop either share leadership or give it up. When Bishop returned to Grenada and refused to share the leadership, he was quickly ousted and was put under house arrest in October 1983. On the nineteenth of that month a number of his supporters freed him from house arrest, but in a march that he led to Fort Rupert they quickly found themselves confronted with forces directed by Coard and General Hudson Austin and others which within a few moments turned against Bishop and a number of his ministers and killed them. A new group, now headed by General Austin, leading what he called the Revolutionary Military Council (RMC), irn- posed a curfew on the island that was to last for five days and that carried with it orders to shoot to kill any violator^.^

Word of the assassinations of Bishop and some of his ministers spread throughout the Caribbean, and a wave of dismay and anger arose. On the 21st of October, members of the Organization of Eastern Caribbean States (OECS) met in Bridgetown, Barbados to consider the crisis, and they continued their deliberations into the following day. The United States government was also concerned about the events in Grenada, where there were approximately 1,000

Waters / A U.S. INTERVENTION 69

Americans, half of them medical students. President Reagan sent representatives to discuss the situation with the U.S. ambassador in Bridgetown, and with the political leaders of the OECS.

The meeting in Barbados ended on October 22, but the OECS members went to Port of Spain, Trinidad and met with other Carribbean Commonwealth states leaders now under the aegis of CARICOM, a trade organization of the Caribbean states. The Grenada crisis apparently continued to be discussed by CARICOM, and sometime on the evening of October 23 those members of CARICOM who were also members of the OECS decided to ask Jamaica, Barbados, and the United States to join them in putting military forces on Grenada and removing the RMC military junta.

The intervention began on October 25, and within a week the forces in Grenada were crushed by the American military units. Reagan claimed that he had been willing to consider peacefully removing the Americans, and in particular the students, from Grenada, but when his representatives from the American embassy in Barbados talked to RMC officials during a trip they made to Grenada, they could reach no agreement on how the Americans could be peacefully removed. That meeting apparently took place on October 23 and 24. The American representatives then left Grenada, and early on the morning of October 25, the military intervention and occupation of the island began.8

The American military forces allowed the governor-general to take over political control. Sir Paul Scoon is said to have sent a message to the OECS by an unknown courier, asking for peace- keeping support sometime around October 23, but apparently no formal message was given to those forces, or to the United States, until after the military intervention began.9 Although the intervening governments claimed that they had in fact been invited by the governor-general to use force to remove the Austin group from power, no formal evidence of this request has ever been provided, and its existence is widely doubted. Sir Paul was alleged to have had the right to make such a request because, the intervenors said, he was the only constitutional authority left in Grenada.lo

70 PEACE A N D CHANGE / January 1989

THE LEGAL AND POLITICAL ISSUES REGARDING THE

GOVERNOR-GENERAL'S STATUS

This entire episode may be analyzed from a political and legal point of view, the legal aspects essentially resting upon the issue of the right of military intervention. The United States and its Caribbean allies made their case in the following manner: (1) they were invited to send military forces into Grenada by the only legitimate government authority left in Grenada, Governor-General Sir Paul Scoon; (2) the eastern Caribbean states had formed a regional collective security organization, the OECS, and they had a right, according to the provisions of their charter and of the UN Charter, to ask for assistance when their security was being threatened; and (3) each of them, and in particular the United States, had a number of citizens on the island of Grenada whose lives were being threatened by the anarchy and the brutality of the dominant political faction, after Bishop and his ministers were killed. It is interesting to note the order of arguments presented by the Department of State spokespersons. The above explanation was provided by Deputy Secretary of State Kenneth Dam on November 4, 1983.'' On January 24, 1984, Assistant Secretary Langhorne Mottley altered the order of importance, placing the rescue mission first, the OECS invitation second, and the governor-general's request last. l2

There are other scholars and political commentators who support the Grenada intervention on the grounds that human rights were violated in Grenada. The UN Charter and other treaties dealing with human rights permit,13 some would say require,14 that states use force to enter another state when gross violations of human rights are taking place, and so reorder the nature of the political system by removing the perpetrators of those violations.

The governor-general's legal status and actions remain one of the great mysteries of the entire affair. This is unfortunate considering the fact that the United States government has put great weight on his role and performance as a basis for legitimizing its

Walers / A U.S. INTERVENTION 71

military involvement. The description of the problem is perhaps best found in the Foreign Affairs Committee Report of the British House of Commons. “Both the timing and nature of [Sir Paul] Scoon’s request . . . remain shrouded in some mystery, and it is evidently the intention of the parties directly involved that the mystery should not be di~pelled.”’~ The mystery arises from the question of who initiated the idea of asking for assistance, whether it was Sir Paul, one of the members of the OECS, one of the members of CARICOM not a member of the OECS, or the United States. Different parties interviewed and the media have suggested one or another of the above, but no one has come forth with proof. A meeting of the OECS heads of government took place at Bridgetown, Barbados on October 21 and 22 and was also attended by the prime ministers of Jamaica and Barbados and, some claim, by the United States ambassador to Barbados, Milan Bish. The latter claim is not supported by statements from the United States, although the State Department does not deny Bish was in touch with those government heads during that period. On the 22nd and 23rd of October members of CARICOM met in Port of Spain, Trinidad. Both of these meetings focused on Grenada and the positions that the attendees should adopt now that Bishop, members of his cabinet, and others had been murdered.I6

At the CARICOM meeting Prime Minister Chambers of Trinidad and Tobago indicated that contacts had already been made with Sir Paul by Sir Ellis Clark, president of Trinidad and Tobago, who was in London and who called at the request of Chambers. This telephone discussion occurred before October 22.’’ The United States government claims that it was informed by Prime Minister Adams of Barbados on October 24 that Sir Paul had contacted him and other OECS leaders asking for help in “res- tor[ing] order on the island. The governor-general has since confirmed this appeal.”1s The Foreign Affairs Committee report of the British House of Commons notes that the request “appears to have been made orally to emissaries sent by the Prime Minister of Barbados, Mr. Adarns.”l9 However, the written request, dated on October 24, was not received until after the entry of United States


troops. The Foreign Affairs Committee Report goes on to state, “There is considerable circumstantial evidence to suggest that the governor-general was aware of the possibility of the intervention at some time earlier than Sunday, October 23, and possibly as early as Friday, October 21 .”2n

According to another source, Prime Minister Adams attributed the first suggestion for a military intervention to Prime Minister Compton of St. Lucia. On the same day “the Barbados cabinet agreed to support a multinational intervention after Caribbean leaders had discussed such a move.”21 Compton was also alleged to have communicated his view to Prime Minister Seaga of Jamaica.22 In the British television program Panorama, broadcast October 31, Sir Paul said he had sought help in the form of a peace keeping mission. He never used the terms “collective security force” or “invasion.” Equally important, he said he had decided to ask help the evening of the 23rd,23 two days after the OECS requested assistance from the United States and three days after President Reagan had decided to go ahead with military plans for a possible “non-permissive” entry.24

Thus i t would appear that U S . intervention was being considered before the governor-general or the OECS requested it. Was Sir Paul Scoon’s request a justification for a policy already decided in advance? Even if Sir Paul initiated the idea, was it within the scope of his office to do so? As indicated above, every government actively involved in this crisis placed great emphasis on Sir Paul’s request, and for the United States it was a significant justification. Therefore, we start our inquiry by examining his status.

Three questions need to be addressed to answer this query. (1) Was Sir Paul Scoon the governor-general of Grenada in October 1983? (2) Was he empowered by virtue of that office, under the circumstances prevailing at that time, to request military assistance in order to establish a new political regime in Grenada? (3) What are the powers of governors-general in the British Commonwealth, and in particular what were they in Grenada during the fortnight succeeding the arrest of Prime Minister Bishop?

Waters / A US. INTERVENTION 73

THE GOVERNOR-GENERAL IN THE BRITISH COMMONWEALTH

We start with some general observations. When a self-governing colony of Great Britain achieves independence, an order is issued by Her Majesty’s Government in Council. This order will, in addition to determining the date of independence, also establish the position of governor-general, which will be filled by either the last colonial governor or someone else chosen by the local government and recommended to HMG for the office. Such a person will be the “constitutional representative of the [monarch] with very limited personal discretionary powers.”25 At Imperial Conferences held in 1926, 1929, and 1930, the status of the governor-general was defined as “representative of the monarch, not of the United Kingdom government.”26 The person so appointed or dismissed is chosen by the newly independent Commonwealth member.*’ The monarch, unless some special arrangement is made, is the head of state, and the governor-general her (his) representative. There is no special relationship between the governor-general and the British government, only between the governor-general and his appointing government?*

In addition to his ceremonial role, the governor-general will appoint ministers, including the prime minister, from the parliamentary majority. The appointments are normally made upon the recommendation, and therefore the guidance, of the leader of that party. When the situation regarding parliamentary leadership is ambiguous due to the balance of power between the parties or the relationship of the leaders within the majority party, the governor general’s discretion is enhanced. But even then his decisions will be “circumscribed by the conventional He may also, according to the constitution, authorize another minister to perform the functions of prime minister if the latter is incapable of fulfilling his duties.30 This area of authority generally encompasses the most significant aspect of his role. Prerogative powers are established by statute or upon advice of the minister^.^^ Except for the discretion


mentioned, Barnett’s examination of the role of governor-general of Jamaica leads him to conclude that he is cast “in the role of a ‘rubber stamp’.”32

In his Commentary on the British North America Act, W. H. McConnell writes that the governor-general gives royal assent to laws passed by the Senate and House of Commons, but that this is a formality since no governor-general would consider refusing.33 “(T)he power of withholding assent . . . is anachr~n i s t i c . ”~~ Mc- Connell holds that the governor-general does have reserve powers that are difficult to define precisely because they are so rarely used. He could veto bills if he felt i t necessary to avoid an “anticipated calamity . ”35

Shifting our examination now specifically to Grenada, there can be no doubt that the office of the governor-general did in fact exist in October 1983. It was first established in the independence constitution of 1973 and although that constitution was suspended on March 27,1979 by the PRG, the office of governor-general was continued People’s Law number 3, March 25,1979). It recognized the queen as head of state and the governor-general as her representative. The law further proclaimed that the governor- general may from time to time advise.36 Article 17 of the constitution empowers the governor-general to declare a state of emergency; under Article 24 he may appoint members of the Senate in accordance with the advice of the prime minister and leader of the opposition and may also declare such seatsvacant in accordance with the advice of the same leaders (Article 27); the governor- general is authorized to assent or withhold assent to bills passed by the Senate and House of Representatives (Article 45); he may summon, prorogue or dissolve Parliament (Articles 51, 52), the latter, however, usually upon the advice of the prime minister. Article 57 vests the executive authority of Grenada in Her Majesty and authorizes the governor-general to exercise it on her behalf. The governor-general appoints the prime minister from the House of Representatives based on the will of the majority of that House, and other ministers upon the advice of the prime minister, and may remove him upon a majority vote of no confidence in that House


(Article 58); he may on his own judgment ask some other minister to perform the functions of prime minister when the latter is unable to so perform or so advises him (Articles 60,61).

The governor-general’s authority vis i2i vis the appointment and functions of the leader of the opposition is identical to that pertaining to the prime minister (Article 66). These are the major, but not the only, powers of the governor-general of Grenada, established in the independence constitution. It should be remembered that most of these seemingly extensive powers were circumscribed by the obligation to receive the consent of others. Whereas the right to withhold assent to bills of Parliament is provided, the custom in British constitutional systems is to give assent.

The view of some scholars that considerable authority is granted by Article 57(2), which establishes the executive in the queen and on her behalf in the governor-general, is certainly misleading. While the queen is head of state in Grenada, as she is in the United Kingdom, this does not bestow upon her any substantial authority. It is a recognition of an office with very limited functions. The same limitations apply under Article 57 to the governor-general of Grenada under the 1973 con~ t i tu t ion .~~ It is likewise questionable whether “the Commonwealth tradition [does accord] broad emergency powers to g ~ v e r n ~ r s - g e n e r a l . ” ~ ~ There would appear to be too few cases comparable to Grenada’s to warrant such a conclusion.

However, the PRG suspended the 1973 constitution (People’s Law number 1),39 and assumed all executive and legislative power.40 People’s Law number 3 continued to recognize Her Majesty as queen with the governor-general as her repre~entative.~~ People’s Law number 18 further elaborated that the governor- general “shall act in accordance with the advice of the cabinet or of a minister acting under the general authority of the cabinet” except where other provisions are established “or in his own deliberate judgment.” Perhaps because of this phrase the Supreme Court of the West Indies Associated States concluded that executive power was shared between the governor-general and the PRG.42 One notes


that while the latter phrase was continued under the PRG, the whole spirit of the new government is clearly one that delimits even more the authority of the governor-general from that which had prevailed under the old con~ t i tu t ion .~~

It has been observed that the UN secretary-general implied that he accepted the status and authority of the governor-general but he did not indicate what he thought the scope of that authority was.44 The next obligation of the analyst therefore is to determine where legal authority lay after Bishop was put under house arrest and five ministers resigned, and after Bishop and three of his ministers were killed.

General Hudson Austin announced on October 14 the dissolu- tion of the PRG and its replacement by a 16-member Revolutionary Military Council. Communications were established personally and by Telex between representatives of the RMC and officials of the United States government, between the RMC and the government of Cuba, and between representatives of the RMC and Sir Paul Scoon, who stated that the council “acknowledged my authority as representative of the Queen in the same way as the People’s Revolutionary Government did.”45

The British embassy in Washington, D.C. for example, released a statement seemingly concurring with that of Sir Paul.

The governor-general remained in office as the representative of Her Majesty as Queen of Grenada throughout the events of the attempted takeover of power by the so-called Revolutionary Military Council. In the circumstances where members of the government were being killed or detained the governor-general had no properly constituted authority to advise him. If in these circumstances the governor-general formed the judgment that there had been such a breakdown of law and order that he could properly request outside help to restore the situation, the British government would certainly not question the propriety of his action.

This view is also upheld by legal advisers in the British Foreign and Commonwealth Office, who are of the opinion that in a situation of the breakdown of law and order, the governor-general

Waters 1 A US. INTERVENTION 77

does have inherent power to act to safeguard the nation.46 Unfortunately, no appropriate cases are available or offered to sustain this position.

John Norton Moore also upholds this viewpoint, claiming not only that the United States had solid legal grounds for using force, but that the governor-general was the only legitimate governmental authority in Grenada on October 25, 1983. “Following Bishop’s death where there was no head of government under [the] ‘People’s Laws’, the constitutional head of state would seem to have been the principal constitutional authority in Grenada.”47 He further states, “It would also seem that whether or not the 1973 constitution or the 1979 ‘People’s Laws’ were in force, the governor-general had broad inherent executive authority to deal with national emergencies stemming from a breakdown of authority. This conclusion is reinforced by the commonwealth tradition of according broad emergency powers to g~vernors-general.”~~

The intervening governments of the United States, Jamaica and Barbados all have taken a similar view. According to Prime Minister Adams of Barbados, “the governor-general of Grenada was the only constitutional authority remaining in the country, and the only one who . . . could issue a formal invitation to foreign countries to enter Grenada to restore order. . . . Accordingly the participating countries have no . . . difficulty in deciding that he should be invested with formal authority as soon as his person should be secured-and this was made a number one priority at operations It is difficult to understand how any outside parties could invest an individual of a different country with any authority. The best light that could be put on Adams’s statement is that outside parties could physically remove any threat to the status of the governor-general, allowing him to reclaim what might have been his authority before. But there we have closed the circle in attempting to determine what that authority was. An opposing viewpoint to the above must now be noted.

I t would appear that for a period of nine to ten days the RMC was acting as a unified government (although with some public

78 PEACE AND CHANCE I January 1989

protest in Grenada) at least until Sir Paul Scoon decided to ask for outside help, circa October 24. A curfew was established and all regular air traffic departing the island was canceled. The British, United States, and Cuban governments treated with the RMC, supporting a de facto claim to its legitimacy. The position of Trinidad and Tobago is ambiguous, for while its government did interrupt commercial relations, following the Estrada Doctrine, it did not break diplomatic relations and in fact did maintain contact with the governor-general. It was willing to enter discussions with “persons exercising authority in Grenada (who, it was assumed) would be willing to treat” with officials of Trinidad and Tobago, albeit for the purpose of establishing a “broad-based civilian government.”50

All of this would seem to indicate an acknowledgment that an existing governmental structure was operating in Grenada, although in interviews and in official statements officials of the United States Department of State have claimed that they were not sure whether any agreements the RMC representatives made would be or could be kept. In fact they claim that promises were made that were not kept.51 While this situation may have created difficulties and uncertainties, particularly when the security of a large number of one’s citizens were involved, it would not seem to be adequate grounds to conclude that a de facto government in Grenada did not exist. In fact, inasmuch as the United States representatives did not treat with the governor-general regarding the status of the Americans in Grenada, nor on any other subject, it would seem clear that they recognized that although the governor-general represented the Queen as head of state, his political powers were quite limited. There is no record of any attempt having been made to see or contact the governor-general while the United States representatives were in the Caribbean area during the period of the crisis and during the time they visited Grenada, as did David Montgomery, the British deputy high commissioner in Barbados.52 (A Barbados report also reveals that Montgomery’s views regarding the conditions seen in


Grenada varied considerably from the more negative opinions of the United States consular officials who traveled with him, as these were publicly presented by the U S . g ~ v e r n m e n t . ) ~ ~

A rebellion against the Bishop government in Grenada had occurred; this was acknowledged by the Court of AppeaLs4 This change of government was much more brutal and bloody and much less popular than that of March 17, 1979, when the New Jewel Movement took over. But this type of affair unfortunately has occurred many times in history and it has come to be accepted in international law that changes in government of this sort are not a matter of official concern by outside governments, except insofar as the change produces a threat to the lives or property of citizens of those outside governments. Vagts puts it well when he writes, “There is still an international law rule that says outside powers may not intervene on behalf of either party to a civil war.”55 This point has been taken up by many scholars; for example, “It may seem pretentious for other states to allocate to themselves the right to recognize or not recognize a situation which . . . is primarily a concern of the people of the state in question. . . . Indeed, it is pretentious when . . . states allocate to themselves a right to intervene to guarantee . . . a friendly . . . g ~ v e r n m e n t . ” ~ ~ Also, “intervention has been defined as a dictatorial interference of a state for the purpose of maintaining or altering the actual conditions of things [in another state].”57

The West Indies Court of Appeal in its 1985 decision dealing with the Grenada defendants has cited the case of Jilani v. Government of Punjab (1972) PLD(SC) 229 in which that court noted that “international law is not concerned [with the legitimacy of a regime]. . . . If a rebel government has succeeded in gaining effective control over people and territory, the other states may recognize it.” And again quoting from Jilani: “Where a de facto sovereign has, in fact, got his position confirmed by the people by habitual obedience over a sufficiently long period of time then alone can he claim to have acquired de jure sovereignty as

80 PEACE A N D CHANGE / January 1989

Joyner claims that the Bishop government was the legitimate government of Grenada and that the People’s Laws were binding. Inasmuch as People’s Law number 2 put all executive and legislative power in the PRG, i t therefore follows that although the office of governor-general continued, its occupant no longer had the executive power. Therefore, he could not legally have acted to invite other nations to send military forces into Grenada to remove the RMC and enable him to operate as the chief executive.59 To that view one could also add the argument made above that third parties may not enter into internal disputes in another country by supporting one side against the other.

The governor-general was presumably permitted to function as representative of the queen. The extent of any emergency powers he might have had was unclear, but there is no indication either in Grenadian history or in the Commonwealth’s that these emergency powers would apply to situations in which the government has been overthrown. More appropriately, it would seem, emergencies contemplated would be ones in which the prime minister and/or his cabinet would have been captured in an invasion, or killed or incapacitated in some catastrophe that did not arise from actions of a contending political group. But where the government is being overthrown because of a challenge to its leadership arising from within the country, there does not appear to be any grounds for the governor-general to take sides. Furthermore, as the Court of Appeal has noted, it was not until October 31, 1983 that the governor- general issued Proclamation No. 1 investing himself with executive power and deeming that the laws of the PRG had lapsed as of October 19.60 Therefore, it would appear that the governor-general was not claiming paramount authority during the interregnum when the RMC was acting as a de facto government.

Situations in which leadership within the majority party is uncertain because opposing factions have emerged or situations in which no party has a clear majority do provide some discretion for the governor-general. But a coup is of a different nature; if a government is removed through the use of force, and if those


individuals who have removed it have established a political organization and indicate that they continue to recognize the office of the governor-general, there would appear to be little room, if any, for the governor-general to operate independently of this group and, in particular, in opposition to them.

The view of most of the intervening parties and the writers who support them seems confused. In essence they suggest that the governor-general is the one thread of continuity through the various regimes that existed and therefore his is the paramount representative voice. The latter does not follow from the former. That he remained in office is true, but that he ever had the capacity to act in the kind of circumstances that arose is doubtful, and that his powers under the Bishop administration were the same as they were before he came to power is even more doubtful. The right to give him authority existed, for reasons suggested above, or for others of a similar nature. The notion that established authority that is recognized as legitimate continues on regardless of the use of force to change it may have been part of the old literature on sovereignty:' but in the twentieth century, and certainly since World War TI, the declaratory theory predominates, namely that a ruling group that is able to make its will prevail is deserving of recognition. But this would surely apply only if there is no reliance upon an outside force. As noted above, other states have no right to enter into a conflict of an internal nature; hence in the instant case they would have no right to respond to a request from the governor-general for the purpose of determining who should constitute the ruling authority. Even responding to the governor- general's request for help is violating that principle. Once those who claim to be the new government, ad hoc or permanent, are removed, the governor-general may take the authority upon himself to establish the internal mechanisms for selecting a new government. This estoppel to foreign intervention may not prevent other governments from acting to protect their own citizens from danger should any actually exist, but such action is of a different character than that which is designed to protect one internal political group from another.


RELEVANT TREATIES, THEIR PROVISIONS AND INTERPRETATIONS

One can point to a long list of treaties and agreements among states whose purpose is to eliminate or at least to reduce the tendency to use military force. Article 10 of the League of Nations Covenant required the members to respect the territorial integrity and existing political independence of other states. The Pact of Paris of 1928 provided in Article 2 that “the settlement of all disputes or conflicts of whatever nature . . . shall never be sought except by pacific means.”62 In addition, one is also reminded of the series of agreements made at the Pan American Conferences in Montevideo, Uruguay, in 1933 and at Buenos Aires in 1936, in which strong statements and resolutions were introduced denying the right of intervention in other states’ affairs, and which view the United States supported.

THE UNITED NATIONS CHARTER

In the post World War IT period, of particular importance is the U N Charter, especially Article 2, Paragraph 4, which states, “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” In the western hemisphere, one should point to the charter of the OAS that prohibits intervention directly or indirectly “in the internal or external affairs of any other state.” Accordingly, many scholars have concluded that noninter- vention has become a basic organizing principle on the world level and in the inter-American system. The United States was obligated to adhere to this principle having signed and ratified the two postwar treaties. The UN Charter is a treaty whose terms are superior to provisions and obligations of other collective security

Waters / A US. INTERVENTION 83

treaties its members may have signed. Article 103 requires that “obligations under the [UN] Charter shall prevail” in the event of a conflict with other agreements.

Article 2(4) may be considered as reflecting the essence of the spirit of the charter, a spirit that if honored would eliminate the collective security provisions of Chapter VIII. It does not, however, preclude the use of force. For Article 51 allows nations individually or collectively to engage in self-defense if a government violates Article 2(4) and carries out an armed attack. Then the target states may act to defend themselves until the Security Council acts to maintain peace and security. Article 52 authorizes the establishment of regional organizations to maintain peace and security but the members must act in a manner consistent with the purposes and principles of the UN, and they must make every effort to achieve pacific settlement of local disputes before referring them to the Security Council. Members acting under Article 53 must obtain permission or authorization from the Security Council before they can undertake enforcement action, except for measures pertaining to enemy states of World War 11.

In an effort to strengthen the UN’s position against intervention, the General Assembly took up the issue in 1965 and 1966. The Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty was adopted December 21, 1965 (Resolution 2131, XX) and was stressed again the following year by a vote of 114 to 0.63 As Corbett notes, the objective was to appeal to states “to refrain from armed intervention . . . for the purpose of changing by violence the existing system of another state or interfering in civil strife in another state.”64 Corbett states that such a resolution may not impose a legal obligation, but due to the results of the vote it does “express a world-community consensus.” He argues that neutrality would “seem to be the prescribed policy.”65

Writing the same view with regard to internal conflicts, Bowett argues that “there is, basically, no right of intervention for any


outside power and no occasion for any exercise of a right of self-defense.” He, too, notes the uncertainty of the status of the General Assembly resolutions mentioned directly above but as does Corbett expresses the view that they are “meant to convey the broad principle that internal conflicts within a state are the concern of that state aIone.”66

One may, therefore, conclude from the UN and OAS charters that members must attempt to resolve their disputes peacefully before utilizing their right of individual or collective self-defense. The Security Council of the UN is responsible for maintaining the peace; it must meet when crises arise to determine if there is a threat to the peace, a breach of the peace, or an act of aggression. And it must then make recommendations or decide what measures should be undertaken to restore peace and security. These are the provisions of Article 39 of the UN Charter.

Many scholars have attempted to interpret the provisions of the UN Charter where matters of intervention occur. One prominent authority on the subject, Lauterpacht, notes that a state would be acting in breach of its obligations under the charter “if it were to invade or commit an act of force within the territory of another state, in anticipation of an alleged impending attack, or in order to obtain redress, without the intention of interfering permanently with the territorial integrity of the state”67 (emphasis added). Josef Kunz takes a very similar view when he states that the threats of aggression or imminence of attack are not enough to permit the invocation of Article 5 1 .68

One of the most insightful commentaries on this matter was made by a former member of the International Court of Justice, Phillip Jessup, who wrote in 1948, “Under the [UN] Charter, alarming military preparations by a neighboring state would justify a resort to the Security Council, but would not justify resort to anticipatory force by the state which believes itself threatened.”69

Goodrich and Hambro, in their widely-respected work on the charter of the United Nations, are also of the view that states that intervene on the alleged grounds of self-defense do so using rather shaky arguments to support those actions. They note that the UN


General Assembly was not sympathetic to interventions by the United States and Britain in Lebanon and Jordan respectively in 1958, and point out that there are dangers of abuse in justifying actions on the grounds of collective ~e l f -de fense .~~ Indeed, the United States’ intervention in the Dominican Republic in April 1965 brought very sharp criticism from the UN Security Council (UN doc. 2/6355, May 14, 1965). During the debate in the UN regarding this action, then U.S. Ambassador Arthur Goldberg reminded the members that the General Assembly had adopted a United States resolution in 1949 entitled “Essentials of Peace.” He said that this resolution “called on all states to refrain from any acts or threats directly or indirectly aimed at impairing the freedom, independence or integrity of any state or from any civil strife in subverting the will of the people of any state.”71 Along the same lines in 1964, President Lyndon Johnson issued a statement expressing concern regarding the use of force and containing proposed guidelines for its use, which he claimed should apply in its direct or indirect form, either as “aggression, subversion or clandestine supply of arms; regardless of what justification or purpose is advanced.”72

Perhaps one of the best statements on the subject came from a highly respected scholar, Quincy Wright, who while speaking at Cornell University said, “I think we have to recognize that civil strife per se, is a domestic question and neither the Soviets nor the United Nations is permitted to intervene.” (This view, of course, did not prevail when the Rhodesian and South African questions were taken up in the General Assembly and Security Council.) Wright’s argument supports the belief that all states are forbidden to intervene at the invitation of any faction involved in a civil war.73

Some writers and scholars who have been supportive of the United States’ interventions in the Dominican Republic, Grenada, and elsewhere have argued that the UN Charter provisions are not prohibitive of these interventions and that therefore such provisions cannot be held to bar the actions of the intervening states.74 They note that interventions have been undertaken by many states and point to the U S . and British interventions in Lebanon and Jordan

86 PEACE AND CHANGE I January 1989

in 1958, to Great Britain’s interventions in Tanganyika, Uganda, and Kenya in January 1964, and the Soviet Union’s interventions in Hungary, Czechoslovakia, and Afghanistan in 1956, 1968, and 1979, respectively. In these post-World War I1 interventions, generally no actions were taken to thwart or penalize the interveners, because resolutions to propose them were vetoed in the UN Security Council by one of those interveners, or a friend. The question one might raise is whether a claim may be made that because these violations occurred so frequently, the body of law on intervention has changed, conforming to the practices of states. But this view does not seem tenable and one is mindful of the dicta in Youngstown Sheet and Tube Company v. Sawyer 343 U.S. 579 (1952) when the court noted, “It is difficult to follow the argument that several prior acts apparently unauthorized by law, but never questioned in the Courts, by repetition clothed a later unauthorized act with a cloak of legality.”75

THE CHARTER OF THE ORGANIZATION OF AMERICAN STATES

The OAS, established in 1948, contains in its charter strong and clear prohibitions against intervention in other states’ affairs. Article 18 provides that no state or group of states has the right to intervene directly or indirectly, for any reason whatever, in the internal or external affairs of any other state. Article 20 states that the territory of a state is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another state, directly or indirectly, on any grounds whatever.

It is alleged by the U.S. government and those who supported the Grenada intervention that the members of the OAS who participated in that intervention were not in violation of the OAS Charter or the UN Charter because they were carrying out efforts to provide for peace and security. The argument, therefore, is that inasmuch as these actions were designed to maintain peace and


security as permitted by Article 52 of the UN Charter, they could not be in violation of the OAS Charter.76 But this amounts to sophistry, for the UN Charter requires that the members “shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” (Articles 2,3).

It appears that no efforts to intervene were planned or undertaken before or immediately after Bishop’s overthrow, and therefore the claim of a sudden need for self-defense is very weak. The Coard-Austin faction that took Bishop’s place made no threats to any other state nor did it behave in a belligerent manner toward any state or its citizens. Nor, in fact, did the Bishop administration. The invocation by U.S. officials of Article 28of the OAS Charter, which authorizes that special treaties such as the OECS or the RIO treaty can be implemented whenever “the territory or the sovereignty or political independence of any American state should be affected by an armed attack or by an act of aggression that is not an armed attack, or by an extra-continental conflict, or by a conflict between two or more American states, or by another fact or situation that might endanger the peace of America,” is inappropriate to the situation that existed in the Caribbean in 1983. Only by the wildest stretch of the imagination can it be argued that any of the conditions outlined in Article 28 existed. If there are facts to the contrary, no evidence has been introduced to substantiate them. To this writer such “facts” could not properly include the quantity of arms stored in Grenada, in part because he supports Lauterpacht’s argument against the claim of a right to intervention “in anticipation of an alleged impending attack”77 and because there was no reliable information available or presented concerning the arms buildup before the intervention.

The rationale that the United States used for claiming its actions were not in violation of the OAS Charter corresponds to the arguments used regarding the intervention in the Dominican Republic in 1965. It is instructive to note that at that time the State Department‘s legal officer, in defending the United States, claimed that the U.S. action was not violative of the OAS Charter because


the Declaration of Punta del Este of 1962 expressed the members’ views that Marxism was contrary to the interests and security of the OAS membership. He argued that the Dominican action was taken to strengthen the members’ efforts to counteract subversion and dangers to the peace of this hemi~phere.’~ Thus, the United States claimed that the intervention was undertaken in defense of the hemisphere. It is very clear that the rationale used then was almost identical with that used in the Grenada intervention 18 years later and reveals the true reasons for the U.S. actions.

THE CHARTER OF THE ORGANIZATION OF EASTERN CARIBBEAN STATES

We turn now to a brief examination of the provisions of the OECS Charter. The charter was approved in June 1981. It consisted of eight eastern Caribbean states, including Grenada, which was at that time under the leadership of Maurice Bishop. Despite the fact that Bishop had come to power by extra-legal means, the other members of the Commonwealth Caribbean issued a communique revealing that the affairs of Grenada were essentially those for the people of Grenada to decide and were not an appropriate matter for outsiders to attempt to alter.79 Thus, it is clear that when the OECS was formed, the members already knew that the Grenada leaders held a different political and social philosophy from that espoused by the other members. Clearly Grenada did not have a Westminster model of government, but obviously that did not deter the other members from inviting Grenada to be a founding member of the OECS. Accordingly, charter provisions of OECS should be interpreted in light of the members’ awareness of Grenada’s different political ideology.

Certain provisions of the OECS Charter are important to note. For example, Article 3 provides that there shall be “cooperation” and “unity” and the “defense of territorial integrity and independence’, undertaken with “due regard to international law.” Article 6 establishes the authority which consists of the heads of


governments (not of states, i.e., not governors-general), the supreme policymaking body. Decisions require an affirmative vote of all members present and voting. If any states are not present, they must indicate their intention either not to vote or to support decisions already made. Article 8 establishes a Defense and Security Committee responsible for coordinating efforts for collective defense against external aggression. The committee may make decisions only by unanimous vote. The United States’s contention is that these OECS provisions are recognized and supported by Article 51 of the UN Charter.

The entire OECS agreement reveals a desire on the part of the members to protect themselves against external aggression or mercenary actions from outside their countries. Yet one cannot construct a parallel between these objectives and what in fact took place in October 1983, for in the instant case we find that the OECS had turned against another member, a condition not contemplated by the founders nor even suggested in any of the provisions of that organization.

VIEWS OF JUDGES AND SCHOLARS

It would be well now to shift from an examination of the various treaties’ provisions on the question of intervention and look at the judgments of international courts and scholars on that matter. The decisions of many international tribunals have reflected a view that states are greatly restricted in their right to use force. One may consider here the arbitral decision in the Naulilaa Incident of 1914. German officers from Southwest Africa were killed by Portuguese authorities when they entered Angola. Germany retaliated by destroying life and property in Angola. The German-Portuguese Arbitration Tribunal took the position that the size of another country’s military strength could not be used as grounds to justify intervention, and also that Germany was obliged to try to make a peaceful settlement first.80


Intervention as preventive action was likewise condemned at the Nuremberg and Toyko trials.*’ The Germans used precisely this argument to justify their invasion of Norway, and the Japanese made the same claim for their invasion of the Dutch East Indies. In the Corfu Channel Case in 1949, the International Court of Justice concluded that the “alleged right of intervention [was] manifesta- tion of a policy of force, such as has in the past given rise to most serious abuses and as such cannot, whatever be the present defects in international organization, find a place in international law. Intervention . . . from the nature of things. . . would be reserved for the most powerful states, and might easily lead to perverting the administration of international justice”. The Japanese had also claimed self-defense with the renewal of fighting in Manchuria in September 1937. The League of Nations Commission of Inquiry rejected the claim on the grounds that the Japanese response to the events that had transpired was not appropriate nor proportionate to the need.83 In none of these instances was the argument regarding state security considered appropriate.

In more recent decades, interventions allegedly on the basis of self-defense or invitation have also taken place. Israel claimed self-defense in its attack on Egypt in June 1967 and on Lebanon in 1982. The United States followed the same practice in Laos in 1971. South Africa made frequent invasions of Lesotho and Angola in December 1982 and 1983 respectively, and of Mozambique in January and February 1981. The Soviet Union followed the same practice in Czechoslovakia in August 1968 and in Afghanistan in 1979, in both cases claiming an invitation had been proffered by each government but offering no proof. None of these instances was regarded as legal by much of the world community, with the exception of the first Israeli claim.84

A final focus in the analysis of the international legal aspect of intervention will take us to an examination of writings of international law scholars. It is, of course, not possible to introduce a discussion of each writer’s contribution on this subject. However,


it will be of value to look at the commentaries of some of the most prominent writers as they have investigated the question of intervention.

Brierly notes that it is contrary to international law to engage in intervention because such action violates another state’s independence. He likewise points out that although history is full of interventions, they almost always have been undertaken by the strong against the weak.8s

Such behavior has been commonplace in the post-World War I1 period. The tensions of the Cold War and the dangers of nuclear war are probably major contributors to this practice. As Falk sees it, this is part of the “politics of expansion ‘designed’ to help sympathetic elites gain control of the apparatus of government in foreign societies. . . . These pressures produce a climate hospitable to revolution and domestic violence.”86

But, of course, revolutionary change began long before World War I1 and occurred in the western hemisphere with great frequency in the nineteenth and twentieth centuries. Efforts to reduce the temptation to establish governments by such a process took different forms, one of which was the establishment of the Tobar Doctrine, which put forth the view that governments that came to power through revolution should not be recognized. But the doctrine never received much support. The argument that favored recognition based on effective control (the declaratory doctrine) was more widely ~upported.~’ Brierly, Falk, and many others have decried the view that any state may intervene in another state’s affairs under claims of self-defense, arguing that such claims must be substantiated by an independent outside source. Von Glahn noted that the parties to that kind of dispute cannot be the final judges as to the question of proportionality. The determination must be made by outside judges.88

The claim of danger and the need to act in self-defense was in fact introduced in the Grenada case by the members of the OECS and supported by the United States, Jamaica, and Barbados not


because of any direct, overt threat issued by an official from Grenada, but because of the buildup of weapons on that island. The United States was willing to support the eastern Caribbean states even though only by the greatest stretch of the imagination could it be claimed that the United States was itself threatened by that weapons buildup. The validity of the argument that a weapons buildup in one state provides adequate legal grounds for military intervention by others has long been questioned. In fact, Grotius raised this challenge as far back as the seventeenth century. He condemned those who took the position that a state that is increasing its power can be invaded on the grounds that it is posing a threat simply because of that increase. Grotius noted that if this were acceptable, “the possibility of being attacked [would] confer the notion of a right to attack in return. It is abhorrent to every principle of equity.”89 Many other writers have taken a similar position, for example, Ian Brownlie, John Bassett Moore, and William W. Bishop. The one possible exception to the prohibition against the use of force when an attack has not actually occurred arises from what is known as the Caroline Incident, which took place in 1841. Secretary of State Daniel Webster uttered what has come to be known as the classic doctrine justifying intervention on apreventive basis. He said it may be accepted only in case of “an instant and overwhelming necessity for self-defense, leaving no choice of means and no moment of del iberat i~n.”~~

It is important to make it clear that at no time were actions or statements or threats of any kind made by the government of Grenada against any other state in the region. Regardless of how horrible and unacceptable, from a moral point of view, was the behavior of the RMC in its coup d’etat of the Bishop administration, it must be noted that that behavior essentially was part of an internal struggle for power within the island of Grenada and not directed against any foreign government. Nor was the governor-general made a prisoner who needed to be “liberated.”91 The views expressed by the intervening powers, it should be remembered, are highly similar to those introduced by Germany and Japan as


explanations for their behavior in World War IT, which, as indicated above, was rejected by the International Military Tribunals at Nuremberg and Tokyo.

MISUSE OF THE CLAIM OF SELF-DEFENSE

A situation somewhat similar to the Grenada crisis occurred in Lebanon in the summer of 1958. President Chamoun was faced with a domestic political crisis that threatened to topple his regime and that some alleged arose because of outside aid given to his opponents. Chamoun asked for and received military assistance from President Eisenhower, who sent in American troops to support him. Starke argues that the U.S. intervention was illegal because there was no instant and overwhelming necessity, but in fact only an internal crisis that outside governments had no right to attempt to influence.92

Finally, one is again reminded of the American intervention in the Dominican Republic in 1965 and the Soviet intervention in Afghanistan in 1979, both of which were undertaken at times when the established regimes of the target countries were threatened by other internal political forces, thereby providing the pretext of the need for assistance in Afghanistan and the need for protection of American lives in the Dominican Republic. In neither case were these acceptable as grounds for intervention under international law.

HUMANITARIAN INTERVENTION

The question of the right to undertake rescue missions is a highly controversial one in international law. Many scholars have written on the subject, but there are numerous differences of view. Some maintain that precharter law did permit the right of humanitarian intervention to protect one’s own citizens if their lives were in danger?3 However, since the U N Charter has been adopted other


writers and governments have greatly challenged this viewpoint, claiming that the charter prohibits such actions, as evidenced by the wording of Article 2 (4).94 Some contend that it never even existed before the charter. Resolutions introduced in the UN General Assembly and judgments of the International Court of Justice in the Corfu Channel case tend to support the contention that such interventions are not legal.95

Those who support the United States’ intervention frequently refer to the Israeli rescue at Entebbe, Uganda in 1976. In that situation, during the UN Security Council debate the U.S. representative supported the action of Israel. He argued, however, that Israel’s action was acceptable because i t was only a temporary breach of Uganda’s territorial integrity. With regard to such a defense, the U.S. delegate said that the right of intervention “is limited to such use of force as is necessary and appropriate to protect threatened nationals from injury.”96

Thomas Frank and others have taken a very skeptical position with regard to the right of intervention in order to rescue “hostages.” It is a weak argument, Frank says, because of the history of such episodes. Most of the time these actions are “undertaken under spurious circumstances and are generally given more credibility than they are entitled to.”97 William D. Rogers, a former president of the American Society of International Law, has come out quite strongly in criticism of such practice, noting that these episodes of intervention are generally masks of interventionary imperialism. He says that “the entire practice has been an expression of a long legal rationalization into the lives and social structures of small and weak powers.’y98 Bowett agrees with this judgment. Aside from the legal issues emanating from the presumed prohibition arising from Article 2(4), he sees a more general right of humanitarian intervention becoming accepted in contravention of the provisions of that article: “It will be used as a cover for interference in the domestic, internal affairs of the state, notably to influence the outcome of an internal struggle.”99 Scholars in this field of inquiry gave only qualified support for the U.S. position in the Dominican


intervention. Despite the United States’ assertion that Americans were in danger, Richard B. Lillich argued that the U.S. position was justifiable only for “the first day or so.”*oo

Frank notes that many other governments of the world would not accept the views that the United States has espoused to support its actions.101 Others who have studied the issue have taken a compatible position. Brownlie’s examination of UN debates on the broad aspects of intervention notes that “the variety of opinions canvassed has not revealed even a substantial minority in favor of the legality of humanitarian intervention. . . . Even those prone to give a broad definition of self-defense do not in general support the view that humanitarian intervention is lawful.”102

Acknowledging that the subject is controversial, von Glahn believes that those who claim that there is “not merely a right but a duty . . . to intervene” are a minority. “The majority,” he writes, “agree that intervention under present-day international law means dictatorial interference by one state in the affairs of another state for the purpose of either maintaining or changing the existing order of things. . . . There cannot be any doubt that as a rule, such intervention is prohibited by international law.”103 Von Glahn’s position is that before another state may take intervening action it must show that “all available peaceful remedies have been exhausted.” Even if the intervention is a collective one taken on behalf of the community of nations, it must “stop short of ‘dictatorial interference.’ ”Io4

Among the minority of scholars who take the opposing view are L i l l i ~ h , ’ ~ ~ Moore,l06 and Reisman.lo7 Their argument is that various governments in Europe and elsewhere have intervened on humanitarian grounds (e.g., France, Britain, and Russia to protect the Greeks against Turkish misrule, in 1830; France in Syria in 1860 and against the Ottoman Turks in 1876; and the United States in Cuba in 1898). This indicates that these grounds became a part of customary international law before the establishment of the UN and continued after its creation,’O8 as is suggested in the discussion surrounding India’s intervention in East Pakistan in 1971. For


writers like Lillich, protecting human rights is an obligation under the Charter equal in importance to maintaining the peace.lo9 Sieghart points out that gross violations of human rights were known to be taking place in the 1930s in Nazi Germany and Soviet Russia, but that at that time such horrible acts were considered legal inside and outside of those lands. No governmental action was urged or taken to stop them.110 Similar note could be made of the post-World War I1 period regarding the brutal mistreatment by governments in various countries and regions such as Central America, Cuba, Argentina, Chile, and Paraguay.lll

One should acknowledge that these scholars’ view supporting humanitarian intervention are upheld by leading figures of the Reagan administration. In an address to the World Affairs Council on November 22, 1983, Assistant Secretary of State for Human Rights and Humanitarian Affairs Elliott Abrams said, “We . . . maintain . . . that the United States cannot witness or permit the slow undoing of those human rights to which this nation has always been committed. Indeed it is precisely our unwillingness to witness the undoing of human rights in such areas . . . as Grenada which is responsible for some of the Reagan administration’s most controversial foreign policy He went on to state, “We acted ethically in sending the U.S. troops because. . .we wanted to restore democracy and respect for human rights in Grenada.”’13 (This justification, however, was never used at the time of the intervention.)

This writer finds fault not only with the nature of the reasoning of these arguments but notes also that all of these writers apparently supported the U.S. position vis ii vis Grenada despite the fact that the specifics in that crisis are at variance with their own arguments. For example, Reisman argues that “a humanitarian intervention seeks neither a territorial change nor a challenge to the political independence of the state involved,”114 and Abrams’s argument specifically upholds the right to overthrow governments in order to protect human rights.

Let us look now at the facts of the case, for the theory can only have utility when it is relevant to the event before us. The U.S.


position essentially was that the American son the island were under grave threat due to the fact that no government prevailed and therefore the islanders were living in anarchy."S Secondly, it is also claimed that guns were in the hands of many people, endangering the lives of others, and that this was proved by the tenor of the situation that existed when the American representatives from Barbados arrived to discuss the condition of the American citizens with RMC officials in Grenada. At first the U.S. diplomats were not permitted to land, and then when they finally were, they were confronted with sporadic gunfire.l16 This description of the atmosphere upon landing was, however, not substantiated by the diplomatic representative of Great Britain who arrived with the Americans at the airport in Grenada.l17 The American contention also is that a shoot-on-sight curfew was itself so horrendous as to make it unacceptable that the United States and other governments should tolerate their citizens living under such conditions.11s Although such a curfew was potentially dangerous, there is no evidence whatsoever that foreigners were selected as targets for the implementation of that curfew. Furthermore, there is no record of anyone being shot during the five-day curfew period. In fact, it is very clear from testimony given by Geoffrey Bourne, the vice- chancellor of the St. George's Medical School,*19 as well as by students whom this writer interviewed in Grenada, that at no time were they directly intimidated or threatened by either Grenadian or Cuban officials.120 It may be noted that the dangers and threats mentioned in Ambassador Kirkpatrick's speech (cited above) were challenged by Congressman Ronald Dellums of California, who said he relied on testimony provided by ranking U.S. military officers in the Caribbean.I2'

Another source of concern was the charge that the Americans were detained on the island. The truth is that Liat Airlines, which flies to Grenada and which is owned by a number of the intervening governments, was ordered by the latter not to land.122 The American government also claims that efforts to arrange for evacuation of American citizens in Grenada failed because of the

Y X PEACE AND CHANGE / January 1989

refusal or lack of cooperation on the part of the RMC 0fficia1s.l~~ But those same RMC officials telexed the American government before the intervention began, stating that the Americans were not in any danger and that furthermore the RMC government would be willing to cooperate with the U.S. government in making it possible for the Americans to leave.124 As a matter of fact, even though the airport was not open to traffic, some students were able to charter an airplane and were permitted to leave before intervention actually occurred.

CONCLUDING OBSERVATIONS

The author would like to conclude this study with the following general observations. First, it seems highly questionable that the governor-general had the authority to issue an invitation to foreigners to bring military forces to Grenada. While there are some noted authorities on British constitutional law who do claim that the governor-general has the obligation of trying to protect law and order when all other appropriate political institutions fail, in this particular instance it was not a question of such an institution failing; i t was a question of political factions having developed that were opposed to each other. The governor-general under those circumstances had no right to bring in third parties in order to return to the status quo ante. This may be what the governor-general himself wished, and what the other parties who intervened wished, but this does not conform to their rights under international law or British Commonwealth practice.

Second, as for the question of the legality of the intervention under the UN or OAS charters, the critics would seem to have the better case. There is no doubt that Chapter VI and Chapter VII of the UN Charter both assume that parties who are engaged in a dispute will undertake efforts to settle their disputes politically before the application of collective security measures is appropriate. Such efforts were not seriously undertaken in the Grenada

Waters I A US. INTERVENTION 99

situation. In addition to that, it is also quite clear that the OAS Charter applied to three of the members, Barbados, Jamaica, and the United States. Under the obligations of that charter they were very greatly restricted with regard to the right of intervention. The OAS Charter makes it clear in article after article that intervention is not acceptable in this hemisphere under any circumstances. While i t is true that self-defense is not eliminated under any of the charters, including the OECS Charter, an honest representation of the situation requires the judgment that at no time were any of the countries threatened by Grenada. Those who would prefer to define this as preventive action will find little ground for support in the principles of the UN Charter, the OAS Charter, or certainly the general principles of customary international law.

Third, there seems to have been a serious misrepresentation of some facts on the part of the intervening powers. Although there is no doubt that the murder of Bishop and some members of his administration was a most heinous act and one that deserved condemnation, this can hardly be viewed as a violation of human rights, particularly of such kind that would authorize intervention under the relevant treaties. And although certain important political rights were denied to Grenadians by the Bishop government (e.g., free press and speech, and legal rights for those accused of crime), no intervention was proposed or implemented during that administration to alter these conditions, nor would it have received much support if it had. During the overthrow of Bishop and the establishment of the RMC government, no foreigners were threatened, nor were any acts taken against them which would permit their governments to intervene in their behalf.

There is also the misrepresentation with regard to justifying intervention on the grounds of the military buildup in Grenada. Aside from the doubts regarding the legality of intervention because of a target state’s military prowess, it is important to point out that the existence of a large cache of arms on the island was not known before the intervention began and therefore could not have been grounds for the action. Finally, it appears to have been


inaccurate to describe the political situation in Grenada on October 25, 1983 as anarchic. The RMC officials were in control. In fact, the American representatives dealt with them, giving them de facto recognition.

In effect the United States, in convenient collaboration with certain Caribbean states, has revitalized the much discredited Roosevelt corollary to the Monroe Doctrine. For what Roosevelt did was to disaffirm the sovereign character of the Caribbean and Central American states, perhaps out of some genuine concern for their treatment at the hands of European powers, but primarily because of an ill-conceived stress on the concept of raison d’2tat. The net result, as Francis Boyle so soundly identifies the issue, was “that the U.S. government . . . exercise[d] an alleged right of preemptive intervention into the domestic affairs of Central American and Caribbean c o u n t r i e ~ . ” ~ ~ ~

The same orientation and conclusion may be assigned to Reagan’s Grenada policy. Regardless of the specific differences between the United States’ behavior and rationalization for it in 1904 and again in 1983, the evidence is clear that powerful states tend to disregard their obligations whenever fulfillment of the same becomes inconvenient in their relations with weaker states. It is most important of all to recognize that Third World countries in particular are highly vulnerable to the political and economic power plays of the larger states. It is they who must insist on a rigorous application of the principlesof the UN Charter, and of the principles of regional organizations, all of which are expected to conform to the charter. When those principles are violated and when the facts are distorted in order to make it convenient to ignore the specifics of the charter, all the world, but in particular the Third World countries, are bound to suffer the consequences. This is a condition that all parties must seek to avoid if peace and justice are to be the twin goals of foreign policy.


NOTES

1. Caribbean Review 12, no. 4 (Fall 1983). 2. Ibid. 3. Ibid. 4. The wurce for the general remarks in this and the following paragraph is H. Michael

Erisman and John D. Martz, eds., Colossus Challenged: The Struggle for Caribbean Influence (Boulder, CO: Westview Press, 1982), pp. 216-27.

5. William C. Gilmore, The Grenada Inrervention: AnalysisandDocumentation (New York: Mansell, 1984), p. 29.

6. Caribbean Review 12, no. 4 (Fall 1983), p. 10. 7. U. S. Department of State, “The Larger Importance of Grenada,” Kenneth Dam,

Deputy Secretary of State, Current Policy, No. 526,4 (November 1983). 8. The account of the above meetings can be found in Caribbean Review 12, no. 4 (Fall

1983): 10-11; Dam, “Larger Importance of Grenada,” p. 102; American Bar Association, Report of the Committee on Grenada (February 10,1984), pp. 6-7.

9. American Bar Association Report, pp. 27-29. 10. U.S. Department of State, “The Decision to Assist Grenada,” Langhorne Mottley,

Assistant Secretary for Inter-American Affairs, Current Policy, No. 541, (January 24, 1984).

11. See Dam, “Larger Importance of Grenada.” 12. See Mottley, “Decision to Assist Grenada.” 13. John Norton Moore, “Grenada and the lnlernational Double Standard,” American

Journal of International Law 78 (1978): 153-54. 14. See Michael Reisman’s views in Richard B. Lillich, ed., Humanitarian Intervention

and the United Nations (Charlottesville: University Press of Virginia, 1973), pp. 173-92. 15. House of Commons, Second Report from the Foreign Affairs Committee, Session

1983-84, Grenada, March 15, 1984 (London: Her Majesty’s Stationery Office), p. xvi. 16. Robert A. Pastor, “The Impact of Grenada on the Caribbean: Ripples from a

Revolution” (Paper presented at the Conference on the Grenada Revolution, Institute of International Relations, University of the West Indies, St. Augustine, Trinidad, May 24-25, 1984).

17. Statement by the Honorable Prime Minister to the House of Representatives of the Parliament of Trinidad and Tobago, October 26,1983, p. 5.

18. See Dam, “Larger Importance of Grenada,” p. 2. 19. See House of Commons Report, p. xvi. 20. lbid 21. Caribbean Insight 6, no. 12 (December 1983): 2. 22. Ibid. 23. Panorama interview, as cited in American Bar Association Report, p. 26. 24. Members of the Legal Advisors Office of the U.S. State Department, interview with

the author, December 22,1983. 25. S. A. de Smith, Constitutional and Adminislrutive Law, 2nd ed. (Harmondsworth:

Penguin, 1973), p. 657. 26. Ibid., p. 658. 27. Ibid.


28. House of Commons Report, p. xvi. 29. Lloyd G. Barnett, The Consrirrttional Law of Jamaica (Oxford: Oxford University

Press, 1977), p. 41. 30. Ibid., p. 45. 31. Ibid., p. 171. 32. Ibid., p. 172. 33. W. H. McConnell, Commentary on the British North American Act (Toronto:

34. Ibid., p. 107. 35. Ibid., p. 38. 36. Albert P. Blaustein and Cisbert H. Flanz, “Grenada,” in Consrirutions of the

37. See Moore’s inaccurate assessment in “Grenada and the International Double

38. Ibid., p. 161. 39. People’s Law, No. 1 , in Blaustein and Flanz, “Grenada,” p. 18. 40. People’s Law, No. 2, [bid. 41. Ibid. 42. Court of Appeal, Civil Appeal No. 7, 1984, In h e Matter of the West Indies

43. Anthony Payne, Paul Sutton and Tony Thorndike, Grenada: Revolution and

44. Report of the Secretary-General, UN Security Council s/l600, October 31, 1983. 45. Panorama interview, p. 26. 46. Legal Advisers to the British Foreign and Commonwealth Office, interview with

47. Moore, “Grenada and the International Double Standard,” p. 160. 48. Ibid. 49. American Bar Association Report, p. 18. 50. Statemenl by Honourable Prime Minister, pp. 4-5. 51. Mottley, “Decision to Assist Grenada,” p. 2, and Dam, “Larger Importance of

52. House of Commons Report, p. xiv. 53. Earl Barrow, “The Danger of Rescue Operations,”Caribbean Review 12, no.4 (Fall

54. Court of Appeal, p. 10. 55. Detley Vagts, “International Law Under Time Pressure: Grading the Grenada

Take-Home Examination,” American Journal of Inrernarional Law 78 (January 1984): 4. 56. Wesley L. Could, An Introduclion to International Law (New York: Harper and

Brothers, 1957), p. 246. 57. Ibid., p. 596. See also Oppenheim, Internalional Law, 7th ed., vol. 1. (London:

Longmans, Green & Co., 1952), pp. 129-272; T. G. Starke,An Introduclion 10 Inlernational Low, 5th ed. (London: Butterworths, 1963). pp. 96 passim and 145 passim.

58. Court of Appeal, pp. 24-26. See also de Smith, Constilutional and Administrative Low, p. 66 and J . B. Bryce, Studies in Hislory and Jurisprudence, vol. 2 (New York: Oxford University Press, 1901), p. 64.

Macmillan of Canada, 1977). p. 37.

Counrries of the World, Vol.VI (Dobbs Ferry, NY: Oceana, 1983), p. 18.

Standard,” p. 159.

Associared Stales, p. 9.

Invasions (London: Croom Helm, 1984), p. 180.

the author, June 20,1985.

Grenada,” p. 2.

1983): 4.


59. Christopher C. Joyner, “Grenada and the United States Invasion: Reflections of the Lawfulness of Action,” American Journal of International Law 78 (January 1984): 131-44

60. Court of Appeal, p. 1 1 . 61. See, for example, Carl J . Friedrich, Authority (Boston: Harvard University Press,

62. League of Nations Treaty Series, Vol. 94, p. 57. 63. P. E. Corbett, “The Vietnam Struggle and International Law,” in Richard A. Falk,

ed., The International Law of Civil War (Baltimore: Johns Hopkins Press, 1971),

1958).

pp. 348-404. 64. Ibid. 65. Ibid. 66. Derek Bowett, “The Interrelation of Theories of Interventions and Self-Defense,’’

in Law and Civil War in the Modern World, John Norton Moore, ed. (Baltimore: Johns Hopkins University Press, 1974), pp. 38-50.

67. L. Oppenheim, International Law, A Treatise, 8th ed., edited by H. Lauterpacht, (London: Longmans, Green & Co., 1955), p. 154.

68. Josef L. Kunz, “Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations,” American Journal oflnternational Law 41 (1947): 872-78.

69. Phillip C. Jessup,A Modern Law oJNations (Toronto: Macmillan, 1948), p. 166. 70. Leland M. Goodrich and Edvard Hambro, Charter of the United Nations:

Commentary and Documents, 3rd ed. (New York: Columbia University Press, 1969), p. 53. 71. Ruth B. Russell, The United Nations and the United States Security Policy,

(Washington, D.C.: The Brookings Institution, 1968), pp. 321-22. 72. U.S. Department of State Bulletin 50 (1964): 157-8. 73. “Human Rights: Protection of the Individual Under International Law,” Cornell

Law School, June 18-20, 1964 (Fred B. Rothman and Co., 1970), p. 111. 74. Moore, “Grenada and the International Double Standard,” p. 153, and Lillich,

Humunitarian Intervention, pp. 173-1 92. 75. For supporting arguments see, for example, Louis Henkin, How Nations Behave,

2nd ed., (New York: Columbia University Press, 1979); Oppenheim, International Law,; Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1983).

76. Dam, “Larger Importance of Grenada,” and Moore, ‘‘Grenada and the International Double Standard,” p. 153.

77. Oppenheim, International Law, p. 154. 78. U.S. Department of State Bulletin, Vol. 53, 1965, p. 62. 79. Gilmore, Grenada Intervention, p. 21. 80. Gould, International Law, p. 592. 81. Robert B. Walkenshaw, “The Nuremberg and Tokyo Trials: Another Step Toward

International Justice,” American Bar Association Journal 35 (1949): 299-302. See also American Journal of International Law 41 (1947).

82. League of Nations Document, 1932, Vll, 12, p. 71. 83. Gerhard von Glahn, Law Among Nations, 5th ed., (New York: Macmillan, 1986),

84. J . L. Brierly, Law of Nations, 6th ed. (Oxford: Oxford University Press, 1967).

85. Ibid.

pp. 76, 157-8.

p. 402.


86. Richard A. Falk, “Janus Tormented: The International Law of International War,” in James Rosenau, Internatiotial Aspects of Civil Sfrqe, (Princeton: Princeton University Press, 1964), p. 219.

87. Ibid., p. 232. One could cite many other international law scholars who have expressed similar views, e.g. Grotius, De Jure Belli ac facis, Book 11, chapter I, section XVII, Brownlie, International Law, Richard A. Falk, Legal Order in a Violetif World (Baltimore: Johns Hopkins University Press, 1968); Charles G. Fenwick, “Intervention and the Inter-American Rule of Law,” American Journal oflnfernafional Law 53 (1959): 873; Quincy Wright, “United States Intervention in Lebanon,”AmericanJournalofInternafional Law 53 (1959): 112.

88. Von Clahn, LawAmong Nafions, pp. 164-65. 89. Grotius, De Jure Belli ac Pacis, p. 184. 90. William W. Bishop, Jr., InternationalLaw: Cases and Materials, (St. Paul: Prentice

91. Governor-General of Grenada, interview with the author, June 8, 1984. 92. Could, Infernational Law, p. 97. 93. Richard B. Lillich, “Forcible Self-Help by States to Protect Human Rights,” Iowa

94. Gilmore, Grenada Infervention, p. 57. Also Brownlie, Infernafional Law, p. 107. 95. Oscar Schacter, “The United Nations and Internal Conflict,” p. 408, and Bowett,

96. 31 UNSCOR (1941 Meeting) 3rd S/P V 1941. 97. Lillich, Humanitarian Inrervenfion, pp. 9-11.64-65. 98. Ibid., pp. 9-11. 99. Moore, Law and Civil War, p. 45. 100. Lillich, Humanifmian Infervention, p. 10. 101. Ibid., pp. 9-11,64-65. 102. Moore, Law and Civil War, pp. 327-28. 103. Von Clahn,LawAmongNafioris, p. 152. 104. Ibid., pp. 153-54. 105. Lillich, Hunranifarian Infervention. 106. Moore, “Grenada and the International Double Standard.” 107. Lillich, Humanitarian Intervention, pp. 173-92. 108. See Burns Weston, Infernational Law and World Order, (St. Paul: West

Publishing Co., 1950); Lillich, Humanitarian Intervention, p. 333; Paul Seighart, The Internafional Law ofHuman Riglits (Oxford: Claredon Press, 1983), p.13.

Hall, 1954), pp. 585-6.

Law Review 53 (1967): 325.

“Intervention and Self-Defense,” p. 45, in Moore, Law and Civil War.

109. Lillich, Humanitarian Intervention, p. 60. 110. Seighart, The Internafional Law ofHuman Righfs, p. 14. I l l . Amnesty International Publications, 1984; Deparfmenf of Safe Bulletin 84,

(February 1984) :24. 112. Departmenf o f 8 a t e Bulletin 84: 2083, p. 24. 113. Ibid., p. 25. 114. Weston, Infernational Law, p. 335. 115. Dam, “Larger Importance Of Grenada.” 116. Members of the U.S. State Department, interview with the author, December 22,

117. House of Commons, Foreign Affairs Committee Report, p. xiv. 1983.


1 18. Mottley, “Decision to Assist Grenada; ” see also Ambassador Jeane Kirkpatrick’s undelivered speech to the UN General Assembly, in Sfrategic Review 12 (Winter 1984):

119. U.S. Congress, House Committee on Foreign Affairs, Hearings of the Subcommit-

120. Students at the Grand Anse campus, interviews with the author, June 7, 1984. 121. Hearings on U.S. Policy toward Grenada, U.S. Congress House Committee on

Foreign Affairs, Subcommittee on Interamerican Affairs, 97th Cong. 2nd session, Decem- ber 14,1983.

11-18.

tee on the Western Hemisphere, 971h Cong. 2nd sess. November 16,1983.

122. Earl Barrow, “Rescue Operations,” p. 4. 123. Motlley, “The Decision lo Assist Grenada.” 124. Extraordinary Session of the Permanent Council of the Organization of American

States, Reported by Grenada’s Representative, Ian Jacobs, (October 26,1983) OEA/Ser. G.,

125. Francis Anthony Boyle, World Politics and lnfernational Law, (Durham, NC: DOC. CP/ACTA 543/83, pp. 4-5.

Duke University Press, 1985), p. 269.