SECRET WAS IN CENTRAL AMERICA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00965R000504520002-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 22, 2016
• Document Release Date: January 12, 2012
• Sequence Number: 2
• Publication Date: April 14, 1986
• Content Type: OPEN SOURCE

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- ww%-- W/ H1NGT0N TIMES
14 April 1986
IN CENTRAL AM[ERICA
` va ues an a true be
A D_J JOHN NORTO N MOORS def o n ahe
f
The core principle of
modern world order is
that aggressive attack
is prohibited in interna-
tional relations and
that necessary and pro-
portional force may be used in re-
sponse to such an attack.
This dual principle is embodied in
Articles 2(4) and 51 of the United
Nations Charter, Articles 21 and 22
of the revised Charter of the Organ-
ization of American States, and vir-
tually every modern normative
statement about the use of force in
international relations.
Indeed, it is the most important
principle to emerge in more than
2,000 years of human thought about
the prevention of war. In the contem-
porary world of conflicting ide-
ologies and nuclear threat, no task is
more important for international
lawyers and statesmen than to main-
tain the integrity of this principle in
both its criticial - and reciprocal -
dimensions: prohibition of aggres-
sion and maintenance of the right of
effective defense.
Today this core principle faces a
fundamental threat. That threat has
already contributed to a serious de-
stabilization of world order and, un-
less arrested. holds potential for the
complete collapse of constraints on
the use of force. It takes the form of
an assault on world order by radical
regimes that share an antipathy to
use o
force to spread
their ideology.
By maintaining that the
achievement of "revolutionary inter-
nationalism" justifies the use of
force, these regimes simultaneously
fight a guerrilla war against the core
Charter principle and publicly deny
any state-sanctioned use of force so
as to gain the protection of the very
legal order they are attacking. Thus,
their assault undermines both the
authority of the prohibition of ag-
gression and the effectiveness of the
right of defense. Nowhere has this
assault been more threatening -
and harmful to the legal order -
than in the contemporary Central
American conflict.
The Nicaraguan
revolution
A t the moment of its suc-
cess, the 1979 revolution
that overthrew President
Anastasio Somoza in Nica-
ragua was broad-based and popular.
It enjoyed the support of organized
labor, professional and business
groups, the church, campesinos and
most segments of Nicaraguan soci-
ety. Pursuant to an extraordinary
OAS resolution of 1979 that recog-
nized the insurgency against the sit-
ting government of an Organization
of American States member, many
democratic countries in Latin
America, including Mexico, Venezu-
ela, Panama, and Costa Rica, sup-
ported the insurgents. Mr. Somoza
had virtually no allies.
As a condition of OAS support, the
1979 resolution required the insur-
gents to support a democratic, plu-
ralist, and non-aligned Nicaragua.
These conditions were accepted by
the Sandinista National Liberation
Front (FSLN) in a cable of July 12.
1979, to the OAS. In the immediate
aftermath of the revolution, there
was great hope - shared by the
United States - that this pledge
would be kept.
Sadly, however, the nine Marxist-
Leninist comandantes who had con-
trolled the effective military insur-
gency progressively assumed power
and thus caused a purge of genuine
democrats. In addition, the coman-
dantes curtailed civil and political
rights, denied free elections, initi-
ated massive militarization of soci-
ety, and, in general, began to move
sharply toward Cuban-style totali-
tarianism.
The Cuban effort to capture the
effective military insurgency
against Mr. Somoza seems to be the
principal cause of this failure of the
Nicaraguan democratic revolution.
Fidel Castro had provided some
arms and training to the FSLN dur-
ing the early 1960s. Beginning in
1977-1978, a high official of the Cu-
ban "American Department;' Ar-
mando Ulisis Estrada, made re-
peated secret trips to Nicaragua to
unify the three major factions of the
FSLN as a condition for receiving
stepped-up Cuban aid.
From the outset, Cuba concen-
trated on ensuring that a hard-core
Marxist-Leninist group was in
charge of the effective military in-
surgency in Nicaragua. It was by far
the most important source of assis-
tance to that insurgency.
Today the nine comandantes who
rule Nicaragua face substantial and
growing internal opposition, as
Nicaraguans increasingly perceive
the democratic revolution as be-
trayed. The rapid growth in oppos-
ing"contra" forces in Nicaragua and
the stream of recent defections. in-
cluding, since 1979, two Nicaraguan
ambassadors to the United States.
provide dramatic evidence of a shift
in popular Nicaraguan feeling about
the comandantes.
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Initial U.S.
relations
cratic Front for the Liberation of
Palestine and the FSLN issued a
joint statement from Havana declar-
ing war against "Yankee imperial-
ism, the racist regime of Israel" and
the Nicaraguan government. The
Sandinistas' foreign advisers and
teachers have been selectively cho-
sen from Cuba, the Soviet bloc, and
other radical states. The rapid
Cuban- and Soviet-assisted military
buildup and early secret military as-
sistance agreements with Soviet-
bloc sources reflect this alignment.
In the United Nations, the Sandin-
ista voting record has been
thoroughly aligned with that of the
Soviet bloc. For example, in the 38th
session of the General Assembly
(1983-1984), the Sandinistas voted
for a unified Soviet-Cuban position
96 percent of the time. They ap-
proved of the Vietnamese invasion
been built up to nearly six times the
size of Mr. Somoza's National Guard.
Today, they are nine times that level
and still escalating. They now have
some 350 tanks and armored vehi-
cles, compared with three tanks and
25 antiquated armored cars under
Mr. Somoza, none in Costa Rica, 16
armored reconnaissance vehicles in
Honduras and less than 30 armored
personal carriers in El Salvador - a
nation faced with a substantial guer-
rilla insurgency. A major airfield ca-
pable of accommodating the largest
aircraft in the Soviet arsenal is being
built at Punta Huerte, and Nicara-
guan pilots are being trained in Bul-
garia to fly Soviet-built MiGs.
This Sandinista military buildup
is unprecedented in Central
America and, with the exception of
the Honduran Air Force, its result
far outclasses the small armed
forces of Nicaragua's neighbors. It
was begun as a deliberate policy well
before any "contra" threat was evi-
dent, that is. in 1980, two years be-
fore there was any significant
armed opposition to the regime. In
1980 the first group of Nicaraguans
was sent to Eastern Europe for flight
training in MiGs. In February 1981,
the Sandinistas announced that they
would build a 200,000-man militia,
but, as The New York Times pointed
out, they faced "surprisingly little
counterrevolutionary activity" at
that time.
The militarization of Nicaraguan
society produced by this buildup is
similar to that in Cuba. On a per-
capita basis, Nicaragua now com-
mands a greater military than any
other nation in the region except
Cuba. On an absolute basis, it now
has the third-largest army in Latin
America, after only Brazil and Cuba.
W hen the Sandinistas
came to power, the
United States made ev-
ery effort to establish
good relations with the new regime.
President Jimmy Carter invited
Comandante Daniel Ortega to the
White House to discuss ways of cre-
ating good relations and to under-
score the seriousness of the U.S. in-
terest in establishing them. The
United States gave $118 million in
economic assistance, including
more than 100,000 tons of food, to the
regime during the first two years.
(This was more aid than was given
by any other nation and over-
whelmingly more than the United
States had given to the Somoza re-
gime at any time.)
While the United States was
striving to build good relations with
the Sandinistas, the comandantes
were secretly concluding military
agreements with Soviet-bloc coun-
tries, beginning a massive military
buildup and joining with the Cubans
in launching an intense secret guer.
rilla war against El Salvador and
Guatemala and armed subversion
against Costa Rica and Honduras. In
its waning weeks in office in late
1980, as intelligence data unmistak-
ably began to show the extent and
seriousness of this secret attack, the
Carter administration informally
suspended economic assistance to
the Sandinistas.
The Sandinista
response
As they openly assumed po-
litical power, the coman-
dantes began to put in
place the familiar appara-
tus of a totalitarian police state: it
was marked by the suppression of
labor movements, attacks on the
church and religious freedom,
attacks on the semi-autonomous In-
dians of the Atlantic region, attacks
on and the clandestine murder of
political opponents, press controls
and censorship, a Cuban-style inter-
nal security system down to the
block level, a virtual merger of the
Sandinista Party with the state,
sham trials by "people's courts" and:
ultimately, the suspension of the
rights of habeas corpus, detention of
growing numbers of political prison.
ers, and institution of a massive state
propaganda system.
The Sandinistas have also violated
their pledge of non-alignment. Prior
to the takeover of power in Nicara-
gua, on March 6, 1978, the Demo-
of Kampuchea, supported action on
an amendment to oust Israel, and
have repeatedly refused to condemn
the Soviet invasion of Afghanistan,
while using the debates on
Afghanistan as an occasion for vehe.
mently attacking the United States
and Israel.
Moreover, the comandantes' rhe-
toric is even more revealing than
their voting record. Sandinista
Army Commander in Chief Hum-
berto Ortega told his officers in Au-
gust of 1981: "We are anti-Yankee,
we are against the bourgeoisie, we
are guided by the Marxist-Leninist
scientific doctrine of the Rev-
olution." Comandante Tomas Borge
told a North Korean audience in
June 1980 - while the Sandinistas
were still receiving massive United
States economic assistance - that
"the Nicaraguan revolutionaries
will not be content until the imperi-
alists have been overthrown in all
parts of the world.... We stand with
the ... socialist countries."
Sandinista rhetoric has also in-
sulted Latin Americans. On Oct. 11,
1985, Ecuador broke diplomatic and
consular relations with Nicaragua.
In announcing the break, Ecuador's
Foreign Minister Edgar Teran said
that Comandante Daniel Ortega has
made "gross, inadmissible attacks
on the dignity, sovereignty and inde-
pendence" of Ecuador. Apparently
underlying the rupture was the dis-
covery that the comandantes had as-
sisted terrorists in a notorious attack
in Ecuador.
The military
buildup
The massive and. secret mili.
tary buildup began even as
the United States poured in
economic assistance. Be-
fore there was any "contra" threat,
the Nicaraguan armed forces had
Waging secret war
The comandantes came to
power with substantial Cuban
assistance - although they
also rode in on a U.S. cutoff of mili.
tary assistance to Mr. Somoza, a
wave of popular sentiment in Nica-
ragua against Mr. Somoza and OAS-
and U.S.-assisted international isola-
tion of the Somoza regime.
The joint statement of goals of the
FSLN published in 1969, a decade
before it took power, stated its sup-
port for "[a] struggle for a 'true'
union of the Central American peo-
ples within one country, beginning
with support for national liberation
movements in neighboring states."
Consistent with this statement,
the comandantes elected as one of
their first orders of business to join
their patron, Cuba, in supporting
"revolutionary internationalism" in
2
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the Central American region. The
most serious attacks in the Cuban-
Nicaraguan secret war against
neighboring states have been di-
rected against El Salvador and Gua-
temala, although Honduras and, to a
lesser extent, Costa Rica, have been
targets of similar small-scale sub-
version, terrorism, and efforts at de-
stabilization.
It should be understood in ap-
praising the armed attacks by Cuba
and Nicaragua on their neighbors
that these attacks are intended by
their perpetrators to be secret and
non-attributable to either country.
Tb that end, they have consistently
employed all the mechanisms
available to a modern and sophisti-
cated intelligence network to con-
ceal the nature of the attacks. And
that network - emanating from to-
talitarian regimes - has not been
subject to scrutiny by the national
media or other democratic checks.
Before 1980, the Salvadoran
guerrillas were few,, disorganized,
and feuding, and were armed only
with pistols, hunting rifles, and shot-
guns purchased largely on the world
market. In December 1979 and May
1980, Castro hosted meetings in Ha-
vana to organize competing Salva-
doran insurgent factions into a Uni-
fied Revolutionary Directorate
(DRU) controlled by Moscow-
oriented Marxist-Leninists. In late
1980, the Farabundo Marti National
Liberation Front (FMLN) was
formed as the coordinating body of
the guerrilla organizations, and a
front organization, the Revolution.
ary Democratic Front (FDR), was
created to attract international po-
litical support.
From approximately September
or October 1980, large shipments of
arms and equipment began flowing
to the FMLN through Cuba and Nica-
ragua. Huge quantities of arms and
ammunition were "surged in" dur-
ing this period, so rapidly in fact,
that guerrilla leaders complained to
Managua that they could not absorb
them.
But the January 1981 FMLN '-fi-
nal offensive" in El Salvador did not
succeed. A principal factor is that in
El Salvador the FMLN, unlike the
insurgents against Mr. Somoza, has
never been able to generate signifi-
cant popular support. In contrast to
Nicaragua, El Salvador had already
had a reformist revolution in 1979.
Although severe polarization and
violence on the far left and far right
were endemic, there was no
"Somoza"
The subsequent free and demo-
cratic elections in 1983 and 1984
culminating in President Jose Napo.
leon Duarte's strongly reformist and
democratic leadership, dealt a se-
vere political blow to the FMLN -
which, lacking popular support, has
consistently refused to participate
in elections.
At roughly the same time, a major
secret war has also been conducted
against Guatemala, with the active
participation and support of the
comandantes as well as Cuba.
There have also been attacks on
Honduras involving insurgent
groups trained in Cuba and Nicara.
gua and, to a lesser extent, terrorist
attacks and subversion efforts
against Costa Rica. Since early 1981,
Nicaragua and Cuba have sought to
build an insurgent infrastructure in
Honduras by recruiting Hondurans
for training in the two countries and
infiltrating the recruits back into
Honduras as armed insurgents.
These attacks and subversion efforts
against Honduras are continuing.
In short, since mid-1980 Cuba and
Nicaragua have been waging a se-
cret war against neighboring Cen-
tral American states, particularly El
Salvador. The attack on El Salvador
is neither temporary nor small-time.
It fields forces roughly one-sixth the
size of the Salvadoran Army and has
resulted in thousands of war casual-
ties and more than $1 billion in di-
rect war damage to the Salvadoran
economy.
The evidence of this secret attack
comes from many sources, which in-
clude highly classified intelligence
reviewed by both the Carter and the
Reagan administrations; conclu-
sions of the Senate and House intel.
ligence committees after careful re-
view of the intelligence data:
conclusions of the bipartisan Kis-
singer Commission after careful re-
view of the entire record and exten-
sive inquiry in the region;
statements and reports of Central
American leaders and nations; re-
ports by independent media and
scholars; public statements by de-
fectors; publicly available Cuban,
Nicaraguan, and FMLN Positions
(though to a lesser extent, for ob.
vious reasons); and, most ironically,
testimony of witnesses for Nicara-
gua in its pending case before the
World Court.
U.S. Peace efforts
T he United States and the at.
tacked nations of the region
have made, and continue to
make, every effort to resolve the
Central American conflict
peacefully. Still seeking con-
structive relations, the Carter ad-
ministration as late as September
1980 certified to Congress that Nica-
3.
ragua was not giving assistance to
international terrorism, so as to be
able to continue American economic
aid that would by law be terminated
if a finding of such assistance were
made. In view of the evidence at that
time, this certification was contro-
versial within the administration.
By December 1980, the intelligence
on Sandinista involvement was over.
whelming. Shortly thereafter, the
Carter administration suspended
AID and PL-480 sales to Nicaragua
and resumed military assistance to
El Salvador.
During 1981-1982, the Reagan ad-
ministration made two major diplo-
matic efforts to bring about a
peaceful end to the secret attacks
from Nicaragua. Assistant Secre-
tary of State Thomas 0. Enders vis-
ited Managua in August 1981 and of-
fered to renew economic assistance
in exchange for an end to Sandinista
support for the guerrillas.
The offer was tied solely and ex-
plicitly to an end by the Sandinistas
of attacks against El Salvador and
neighboring states. The Sandinistas
never responded to the Enders offer,
and their ambassador to the United
States, Arturo Cruz, resigned
shortly thereafter in frustration at
these developments. In April 1982,
the United States made an eight-
point proposal reiterating the Au-
gust offer and emphasizing interna-
tional verification of arms
limitations and reaffirmation by
Nicaragua of its OAS commitments
to support pluralism, free elections,
and a mixed economy.
In October 1982, the United States
joined eight democracies of the re-
gion in drawing up the San Jose Dec-
laration, which outlined essential
conditions for peace. The Sandin-
istas refused both to meet with the
group's designated spokesman,
Costa Rican Foreign Minister Fer-
nando Volio Jimenez, and to discuss
the San Jose Principles.
The United States supported ef-
forts begun by Colombia, Panama,
Mexico, and Venezuela in January
1983 at Contadora. Panama, to medi-
ate a regional settlement. These
"Contadora" talks, which were sup-
ported by the OAS, produced
agreement on a 21-point Document
of Objectives whose verifiable im-
plementation would have met U.S.
concerns. Since late 1984, the Conta-
dora discussions have focused on re-
solving differences between a Sept.
21 draft supported by Nicaragua -
which Nicaragua insists be accepted
without change - and prepared
amendments by Honduras, El Salva-
dor, and Costa Rica, as well as on
efforts to strengthen verification.
It has frequently been suggested
that the United States resort to the
Organization of American States. lb
date, however, the OAS has clearly
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preferred not to be involved and has
pointedly endorsed the Contadora
process. Even more importantly,
Nicaragua has viewed the OAS as a
hostile forum and has sought to pre-
vent it from considering the issues.
`Contras' develop
spontaneously
There was no significant mili-
tary opposition to the Sandin-
istas until the spring of 1982.
That was over a year and a half after
the sustained secret attack began on
El Salvador in mid-1980 and more
than six months after Mr. Enders's
effort to resolve the attack
peacefully - indeed, to resume eco-
nomic assistance to the Sandinistas
if they would simply cease their at-
tack - went unanswered.
It seems clear from press and
first-person accounts that the armed
military opposition to the Sandin-
istas developed spontaneously and
independently. These same press re-
ports and open congressional dis-
cussion also suggest that, in re-
sponse to the continuing Sandinista
attacks, the United States and some
other nations began providing assis-
tance to the opposition. The U.S. ob-
jectives have been to assist in inter-
dicting the attacks through direct
assaults on weapons-shipment
points and through the diversion of
Nicaraguan resources to internal
concerns.
Most importantly, the "contra"
policy seems intended to convince
Nicaragua it should cease the armed
attacks on its neighbors.
U.S. assistance to the groups var-
iously known as "contras" or "demo-
cratic resistance forces" has been
carefully controlled. Under the
Boland amendment, Congress in-
sisted that the U.S. objectives not be
to overthrow the government of
Nicaragua, despite its secret armed
attack on neighboring states, but
solely to protect neighboring states
from these attacks.
The contrast between the all-out
Cuban-Nicaraguan support for the
FMLN and the cautious, on-again,
off-again United States support for
the "contras" is striking. Even
though assistance to the "contras" is
a defensive response to an armed at-
tack, Congress has restricted U.S.
actions to make it clear that such
support is not to be given for the
purpose of overthrowing the govern.
ment of Nicaragua, and it has pro-
hibited small-scale mining of har-
bors. For a substantial period, all
assistance was terminated, and
since its renewal, it has consisted
only of non-lethal humanitarian aid
that may not be administered by the
Department of Defense or the CIA.
In contrast, Cuba and Nicaragua
have provided unstinting political
and military support to the insur-
gents in El Salvador; the very pur-
pose of their attack is to overthrow
the democratically elected govern-
ment of EL Salvador. No Boland
amendment, fund cutoffs, or other
limitations hamper their attacks.
They provide a full range of support
services to the insurgents, have
stepped up the indiscriminate use of
land mines, and would certainly re-
gard as laughable any suggestion
that their assistance should be
limited to non-lethal humanitarian
aid.
Despite these differences in kinds
and levels of support, the FMLN in-
surgency has decreased in number
from approximately 9,000 to 6,000
and, according to Nicaragua's own
testimony before the World Court,
the "contra" groups have grown
from approximately 7,000 at the end
of 1983 to nearly 11,000 by late 1985.
It should be noted that during much
of the period when this significant
growth of the democratic resistance
took place, the United States by law
provided no assistance. The princi-
pal difference seems to be that the
FMLN has little political support in
El Salvador, as that country has
made a successful transition to a re-
formist democracy, while opposition
has been dramatically mounting in
Nicaragua as the comandantes move
toward totalitarianism.
Misinformation
Campaign
F or the democracies, one of the
most dangerous - and puz-
zling - elements of the cur-
rent assaults by radical regimes is
that their covert nature makes them
difficult to accept. Tb make accep-
tance more difficult, they are fre-
quently masked by a cloud of misin-
formation and propaganda.
Substantial evidence suggests that
attention is concentrated on this po-
litical front in such assaults. The se-
cret attack against El Salvador and
neighboring Central American
states is no exception. As Philip
Taubman wrote in The New York
Times in 1982: "In recent months,
with increasing sophistication, the
leaders of the guerrilla movement in
El Salvador have mounted a public
relations campaign directed at
world opinion in general, and at
American public opinion in particu-
lar." Tbday the FMLN operates more
than 60 offices in 35 countries to sup-
port its attack against the govern-
ment of El Salvador. Nicaragua has
worked to create a network of "soli-
darity committees" within the de-
mocracies, particularly the United
States, the Western European coun-
tries, Canada, and Australia.
As part of their propaganda ef-
fort, the comandantes have encour.
aged a sophisticated and extensive
political campaign in the United
States featuring trips for Americans
to Nicaragua, public appearances by
Nicaraguan spokesmen before
American audiences, films, and
even direct phone lobbying by Dan-
iel Ortega of individual American
congressmen before key congres.
sional votes. The comandantes have
hired a Washington law firm to lobby
for them in the United States and to
represent them before the World
Court.
Cuba has also played an active
role in the progaganda war. Earl
Young, an intelligence expert on the
Central American conflict, writes:
"Recent defectors from various Cu-
ban government departments have
stated that this propaganda effort
[on behalf of the guerrillas in El Sal-
vador] is conducted by Soviet-
trained Cuban specialists with East-
ern European support." The
propaganda has focused on denying
that insurgents in neighboring
states were being assisted, making
exaggerated human rights charges
against the government of El Salva-
dor and the "contras," supporting
the FMLN as a "democratic alterna-
tive," attacking the "contras" as
"Somocistas," denouncing the U.S.
response as ideological anti-
Communism rather than collective
defense, and characterizing the U.S.
withdrawal from the Nicaragua case
[in the World Court) as "proof" of the
illegality of of U.S. actions.
Legal Issues
The Cuban-Nicaraguan secret
war against the neighboring
states constitutes an armed
attack justifying the use of force in
collective defense under Article 51
of the U.N. Charter and Article 3 of
the Rio Treaty.
Article 51 provides: "Nothing in
the present Charter shall impair the
inherent right of individual or col-
lective self-defense if an armed at-
tack occurs against a Member of the
United Nations.... "Article 3 of the
Rio Treaty incorporates this right
into the inter-American system, de-
clares that an attack against any
American state - such as El Sal-
vador - is an attack against all
American states, including the
United States, and goes beyond the
Charter in creating a legal obligation
on the United States and all other
American state parties to assist in
meeting the armed attack.
This obligation is parallel to that
owed by the United States to NATO
under Article 5 of the NATO Treaty
in the event of an attack on a NATO
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member, or under Article 5 of the
Mutual Defense Treaty with Japan
in the event of an attack on Japan.
The right of an individual and col-
lective defense embodied in Article
51 of the Charter applies to secret or
"indirect" armed attack as well as to
open invasion.
The United Nations Definition of
Aggression unambiguously recog-
nizes that aggression may include
indirect aggression. Thus, Article
3(g) characterizes as acts of aggres.
sion "(t)he sending by or on behalf
of a State of armed bands, groups,
irregulars, or mercenaries, which
carry out acts of armed force
against another State of such gravity
as to amount to the acts listed above
(invasion, military occupation, use
of weapons, etc.), or its substantial
involvement therein."
As for fundamental community
goals underlying the Charter, the re-
quirement of "armed attack" under
Article 51, like the requirement of
"necessity" under customary law, is
largely designed to restrict the right
to the defensive use of intense coer-
cion to situations that threaten fun-
damental values. By such verbal
tests, contemporary international
law establishes that minor en-
croachments on sovereignty, politi-
cal disputes, frontier incidents, the
use of non-coercive means of inter-
ference and, generally, aggression
that does not threaten fundamental
values such as territorial and politi-
cal integrity may not be defended
against by a major resort to force
against another state.
But where a major military as-
sault is made against such funda-
mental values as self-deter-
mination and political integrity, it is
irrelevant whether that assault is in-
direct and denied or direct and ac-
knowledged.
The secret Cuban-Nicaraguan at-
tack against four neighboring states
is not a minor border incident or po-
litical disagreement. Nor does it
consist of overenthusiastic, but mi-
nor, assistance to an insurgent fac-
tion or even isolated acts of terror.
ism or subversion. It is an intense
and sustained secret war employing
sophisticated modern weapons and
inflicting thousands of casualties in
an all-out assault on governmental
institutions and political integrity. It
has resulted in over a billion dollars
in damage to El Salvador alone and
in the creation of refugees and social
dislocation on a massive scale. It is
being contained - but not yet ended
- only by a major military buildup
that is stifling the development
hopes of states in the region.
Its success would mean loss of
self-determination for the attacked
states and possibly even
incorporation into a greater Nicara-
gua. It is being pursued by an alli-
ance that used the same formulas to
take control of Nicaragua and that
has openly and repeatedly pledged
forcibly to install like-minded gov-
ernments in neighboring states. Tb
treat such a setting as a non-"armed
attack" or one lacking any "neces-
sity" for response would be to ignore
what may well be the most serious
generic threat to the contemporary
Charter system - the deliberate se-
cret or "indirect" war against ter-
ritorial and political integrity.
Under the Charter, a defensive re-
sponse must be not only necessary
but also proportional.
The values to be conserved in El
Salvador and neighboring Central
American states are among the most
basic guaranteed to all states by the
U.N. Charter: the rights to territorial
integrity, political independence,
and self-determination. The Charter
is not a suicide pact. It does not con-
demn an attacked state to perpetual
attack but, instead, permits reason-
able responsive coercion against the
attacking state as necessary in de-
fense.
In this case, U.S. assistance to the
"contras" has been instrumental in
reducing the level of that attack. It
has certainly not been an unneces-
sary overreaction, since the secret
attack against El Salvador and
neighboring states is continuing.
Nothing could more quickly doom
the Charter to irrelevance than to
limit defensive options against se-
rious armed attack solely to those of
the least military and political effec-
tiveness. Response solely within the
attacked state leaves the military ad-
vantage to the attacker. An
equivalent response in kind against
the attacking state, however, shifts
the military multiplier effect against
the aggressor, permits direct action
against weapons transshipment
points, and creates a persuasive in-
centive not to engage in an endless
secret war.
Proportionality, correctly per-
ceived, is not so much an exercise in
matching levels of force between
attacker and defender as, rather, a
relation between lawful objectives
in using force and the effective pur-
suit of those objectives in the way
least destructive of other values.
Nevertheless. a comparison of
levels of force provides one contex-
tual feature in assessing the propor-
tionality of the response. In its at-
tack against El Salvador and
neighboring states, Nicaragua sup-
plies command and control,
training, funding, weapons, and lo-
gistical assistance. It seeks the over-
throw of the democratically elected
government in El Salvador, supports
terrorism and efforts to destabilize
three other neighboring states, and
does not suffer from any apparent
constraints on its activities, other
than a thoroughgoing effort at con-
cealment.
The United States, in contrast, has
not responded with bombing or inva-
sion. It is difficult to see how the
considerably more restrained U.S.
response against Nicaragua can be
disproportionate to Nicaragua's de-
termined and continuing attacks
against four Central American
states.
There is no prohibition under the
Charter - apart from the general
requirement of proportionality -
against covert action as part of a de-
fensive response to an armed attack.
A response in defense may lawfully
be overt, covert, or - as in virtually
every conflict in which the United
States has fought in this century -
both.
The United States also has not vio-
lated any national law concerning
the use of force, such as the War
Powers Resolution, the neutrality
acts, and the Boland amendment.
Depite the invocation of these na-
tional laws in the usual polemics sur-
rounding any war/peace issue, there
is no serious scholarly opinion to the
contrary.
Peace palace-
goes to war
O n April 9, 1984, Nicaragua in-
stituted proceedings before
the international Court of
Justice alleging that the United
States was unlawfully using force
against Nicaragua and intervening
in its internal affairs.
The complaint, which precip-
itated a highly visible dispute in the
United States about providing assis-
tance to the "contras" for the small-
scale mining of Nicaraguan harbors.
was a propaganda coup. On May 10,
1984, the court decided in a provi-
sional order that the United States
"should immediately cease and re-
frain from any action restricting,
blocking, or endangering access to
or from Nicaraguan ports" and that
"the right to sovereignty and to po-
litical independence ... of Nicara-
gua ... should be fully respected and
should not in any way be jeopardized
by the principles of international
law."
On Nov 26 the court decided that
it had jurisdiction on the merits in a
decision that, in its most important
dimension, was decided by 11 votes
to 5. After a careful review, the
United States subsequently an-
nounced that "with great reluctance.
[it] had decided not to participate in
further proceedings in this case.'
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Once the court decided to go for-
ward to the merits, I believe the
United States would have been bet-
ter advised to pursue the proceed-
ings. U.S. withdrawal could only
hand the Sandinistas a propaganda
windfall by further confusing world
opinion about the Cuban-
Nicaraguan secret war against
neighboring states.
As a special counsel for the United
States in the Nicaragua case, I am
convinced that Nicaragua's princi-
pal objective in going to the court
was to reap a propaganda victory
and to move away from genuine mul-
tifaceted regional negotiations.
Misperceptions
Quite a few factual and legal
misinterpretations about
the Central American con-
flict occur with sufficient frequency
to deserve separate comment. These
can be characterized as: the "invisi-
ble attack" syndrome, the anemic
right of defense, the comandantes
(and FMLN) as "aggrieved
plaintiffs;' the alleged "American
Brezhnev Doctrine," and misrepre-
sentation of human rights issues in
the conflict.
One of the most dangerous as-
pects of clandestine attacks by radi-
cal regimes using terrorism and in-
surgency is that such attacks may be
broadly treated internationally as
non-existent. Through the use of so-
phisticated covert means, a major
politico-military threat can be cre-
ated without receiving much more
public attention than the everyday
global background noise of terrorist
incidents and guerrilla activity.
The sponsors of such attacks sup-
port them through incessant propa-
ganda and effective political action
coordinated with a sympathetic net-
work of radical regimes and "soli-
darity committees." The sponsors
thus succeed in focusing attention on
alleged (and, in some cases, quite
real) political or human rights short-
comings of the attacked entity and
on the permissibility of any defen-
sive response.
The impact on world order is dev-
astating, as the great principle of the
Kellogg-Briand Pact and the U.N.
and OAS Charters is turned upside
down. Armed aggression becomes
politically invisible; armed reponse
to that aggression is transmogrified
into the condemned armed attack. It
is as though the immune system of
international law had gone haywire
and begun methodically to attack de-
fensive response while ignoring the
virus of aggression.
The secret war in Central
America presents a chilling exam-
ple. A Sandinista radical leadership
that systematically participates in
full-scale covert armed attacks
against one of its neighbors and in
terrorism and subversion against at
least three others - and does so de-
spite major efforts at good relations
and massive economic assistance
from the democracies - lies about
its covert activities - and goes to the
World Court to seek to halt the defen-
sive response. The international
community, only vaguely aware of
the extent of the attack, reacts with
indignation at the highly publicized
defensive response. Like the im-
mune system gone haywire, the re-
action is vigorous, but the target has
been converted from the attack into
the response.
Few who have seriously reviewed
the evidence - from the attacked
governments in Central America to
the congressional intelligence over-
sight committees and the bipartisan
Kissinger Commission - doubt that
the root of the world-order problem
in Central America is a serious on-
going secret war directed from
Cuba and Nicaragua against
neighboring states, particularly El
Salvador. The "contra" response is
just that: an effort by the democ-
racies to defend against that attack
and to create a meaningful incentive
for the perpetrators to stop.
A recurrent misperception that
frequently accompanies the "invisi-
ble attack" syndrome results from
defining the right of defense so nar-
rowly as effectively to destroy it. In
this connection, three arguments
are most frequently advanced in the
Central American context: first, that
no defensive response may be un-
dertaken against the attacking state
until the Organization of American
States has authorized such an action;
second, that any defensive response
must be confined to the territory of
the attacked state; and third, that as-
sistance to insurgents in the attack-
ing state cannot be a proportional
response.
The Rio Treaty (the basic defense
treaty of the inter-American system)
like the NATO Treaty and every
other significant defense
agreement, was structured to per-
mit immediate response to an attack,
as allowed under Article 51 of the
U.N. Charter "until the Security
Council has taken measures neces-
sary to maintain international peace
and security." The main purpose of
the Rio Treaty, like all mutual de-
fense treaties, is to go beyond the
U.N. Charter in creating an obliga-
tion to assist in meeting an attack.
It is not only incorrect, it is politi-
cally naive in the extreme to suppose
that the members of the OAS - or
of any other defensive alliance sys-
tem - would have given up their tra-
ditional right of individual or col-
lective defense against armed
aggression when the very purpose
of such an alliance is to strengthen
their defensive capability.
G.
A second argument is that any de-
fensive response to "indirect;' as op-
posed to "direct% aggression must
be confined to the territory of the
attacked state. This argument was
advanced by some critics of Amer-
ican actions in Vietnam.
As a policy matter, the only pur-
pose of such a rule would be to seek
to reduce conflict by reducing the
potential for territorial expansion.
The rule might be more likely, how-
ever, to encourage conflict and "indi-
rect" aggression by convincing
states that such aggression is free
from substantial risk: if it works,
they will win; if it fails, there is no
significant risk and they can try
again. As this possibility suggests,
the right of defense under custom-
ary international law and the
Charter is a right of effective de-
fense - that is, a right to take such
actions as are reasonably necessary
to end the attack promptly and pro-
tect the threatened values.
Why should El Salvador and other
Central American states be required
to accept an endless secret war
against them? Does anyone doubt
that the United States would respond
directly against Cuba and Nicara-
gua if under the same circum-
stances they were supporting within
its territory an armed insurgency
fielding forces one-sixth the size of
a rapidly increased U.S. Army? Does
anyone doubt that the Soviet Union,
France, India, Brazil, or Nigeria
would so respond in similar circum-
stances?
A third argument sometimes
advanced is that assistance to insur.
gents in the attacking state cannot
be a proportional response or, spe-
cifically, that any U.S. assistance to
the "contras" would not be propor-
tional in the Central American con-
flict. Again, however, there is no
such general rule of international
law. As to proportionality (which is a
requirement), it is difficult to under-
stand how a response in kind that is
considerably more restrained than
the attack and that has not yet
stopped the attack is somehow dis-
proportionate. As we have seen,
Cuba and Nicaragua are not bound
by any such constraints as limit the
U.S. response. Most importantly, the
"contras' " response meets the test
of proportionality, for it'has blunted
the attack but not yet ended it.
By pursuing their attack on
neighboring states secretly, the
comandantes have been able to pos-
ture before much of the world -
except, notably, Central America -
as aggrieved plaintiffs. Like the
childhood bully, they seek to per-
suade the world that "it all started
when he hit me back." There are at
least six reasons why such a posture
is not credible.
First, and most importantly, it is
the comandantes who initiated the
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attack. Assistance to the "contras" is
a defensive response that did not be-
gin for well over a year after the most
intense phase of the attack against
El Salvador and after the Sandin-
istas were unambiguously offered
economic assistance if they would
halt their attacks.
Second, even if all the arguments
restraining the right of defense were
accepted and assistance to the "con-
tras" were illegal, the comandantes'
assistance to insurgent groups in
neightboring states would remain il-
legal under numerous fundamental
legal principles.
Third, the comandantes who are
complaining about assistance to in-
surgent groups against them were
themselves insurgents who came to
power through massive outside as=
sistance, including external financ-
ing, training, weapons supply, and
coordination of military tactics, and
the direct participation of foreign
nationals as combatants and mili-
tary advisers.
The point is not to argue for a gen-
eral international legal right of as-
sistance to insurgencies against
regimes that have come to power
with major foreign assistance. It is
rather that a regime whose legiti-
macy is based solely on a seizure of
power with foreign assistance, in
seeking as plaintiff to make a case
against such assistance, is relying
on a principle that it has violated
itself.
Fourth, this tenuous case of the
regime as plaintiff is made even
more tenuous by its failure to adhere
to the internationally established
conditions for its recognition. The
comandantes, contrary to their
pledge to the OAS and contrary to
the OAS-established conditions for
their recognition, have failed th hold
free elections (after six years) and
are moving toward totalitarian con-
trols at home and alignment with ag-
gressive regimes abroad.
Fifth, the comandantes' posture
as plaintiff is called into question by
the disrespect for international law
shown in the discrepancy with
known facts in their sworn affidavits
and testimony to the World Court.
Finally, it is surely relevant in con-
sidering the posture of the coman-
dantes as plaintiff - at least in moral
terms - that their regime has de-
nied broadly accepted international
human rights and refused any genu-
ine test of self-determination
through free elections, while the
democratic resistance has explicitly
sought as its objectives human
rights guarantees and free elections
under international supervision.
Alleged `American
ev Doctrine'
A centerpiece of the Sandin-
istas' allegations to the
World Court is that the pur-
pose of the United States is not to
respond to armed aggression
against Nicaragua's neighbors, but
rather to overthrow a government in
Managua with which it disagrees.
Typically, the "proof" offered for
this argument is found in press con-
ferences in which the U.S. president
stressed the need for the comandan-
tes to keep their pledge to the OAS
and restore democratic rule and -
on one occasion - stated that the
United States would persist until the
Sandinistas said "uncle." Statements
of individual "contras" are also cited
to support the proposition that the
"contras' " objective is to overthrow
the government in Managua rather
than to interdict weapons supplies to
the FMLN insurgents in El Salvador.
This argument implies that the
United States is pursuing a hemi-
spheric "American Brezhnev Doc-
trine" or, more broadly, a global
policy of "war of national liber-
ation." There are at least five rea-
sons why the argument is erroneous.
First, as has been seen, the United
States vigorously sought good rela-
tions with the comandantes, even
though it was evident that they were
Marxist-Leninists.
Second, neither presidential
press conferences nor other
statements by U.S. officials support
the argument of the Sandinistas un-
less generous innuendo is supplied.
Third, U.S. policy in Central
America and elsewhere is governed
by applicable national legal re-
straints. The Boland amendment,
which qualifies any United States as-
sistance and is accepted as binding
by the president, provides:
None of the funds provided in this
Act may be used by the Central Intel-
ligence Agency or the Department of
Defense to furnish military
equipment, military training or ad-
vice, or other supportfor military ac-
tivities, to any group or individual,
not part of a country's armed forces,
for the purpose of overthrowing the
government of Nicaragua or provok-
ing a military exchange between
Nicaragua and Honduras.
This legal condition remained
strictly in force following the con-
gressional decision to renew non-
lethal humanitarian assistance to
the "contras," It is hardly consistent
with the thesis of an American doc-
trine of "wars of national liberation,"
or "Brezhnev Doctrine."
Fourth, the policy of the "con-
tras;' or democratic resistance, has
not been to seek the forcible over-
throw of the Sandinista government.
Despite some personal statements to
the contrary, the reistance groups
and their leaders have made it clear
that they seek a negotiated end to
hostilities and that they seek to par-
ticipate in internationally observed
free elections in accordance with
the OAS conditions.
Finally, even if the objective of the
United States were to overthrow the
government of Nicaragua - which
it is not - in a setting of an ongoing
armed attack against neighboring
states by a government that refuses
to cease those attacks and is en-
gaged in a massive military buildup
to support them, such an objective
would be a lawful defensive objec-
tive; that is, it would be both neces-
sary and proportionate to overthrow
an attacking government that
refuses to halt its aggression.
Strengthening
world order
T he secret war in Central
America illustrates the dan-
ger to world order - and to
the legal order itself - posed by the
assaults of radical regimes. In Nica-
ragua three small and unrepresenta-
tive Marxist-Leninist factions came
to power through focused Cuban eco-
nomic and military assistance dur-
ing a genuine and broad-based rev-
olution against Mr. Somoza.
Subsequently, the nine leaders of
these factions joined with Cuba in a
secret war against neighboring
states. That war is conducted
through assistance in organizing
Marxist-Leninist-controlled insur-
gencies; the financing of such insur-
gencies; the provision and
transshipment to them of arms and
ammunition; training the insur-
gents; assistance in command and
control, intelligence, military and lo-
gistics activities; and extensive po-
litical support. It also includes ter-
rorist attacks and subversive
activities preliminary to and sup-
portive of an all-out covert attack.
Arrayed in support of this secret
war is a diverse conglomeration of
radical regimes and insurgent
movements from the Soviet Union
and Soviet-bloc nations such as East
Germany, Bulgaria, Czechoslovakia,
Cuba, Vietnam, Ethiopia, and North
Korea to Libya, Iraq, Iran, and the
Palestine Liberation Organization.
The nine comandantes have also
made Nicaragua available as a more
generalized sanctuary for radical
terrorist attacks. Non-Central
American groups currently op~e^rat-
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ing from Nicaragua include: cotom-
bia's M-19 (the terrorist group that
recently took hostage the Colombian
Supreme Court, which resulted in
the deaths of 11 members of the
court), the Argentine Montoneros,
the Uruguayan Thpamaros, the
Basque ETA, the Palestine Liber-
ation Organization, Italy's Red Bri-
gades, West Germany's Baader-
Meinhof gang, and the Irish
Republican Army.
The strategy of covert and com-
bined political-military attack that
undergirds this secret war is a par-
ticularly grave threat to world order.
By denying the attack, the aggres-
sors create doubts as to its exis-
tence; and by shielding the attack
with a cloud of propaganda and mis-
information, they focus world atten-
tion on alleged (and sometimes real)
shortcomings of the victimized state
and the permissibility of defensive
response. The result is a politically
"invisible attack" that avoids the
normal political and legal condem-
nation of aggressive attack and in-
stead diverts that moral energy to
condemning the defensive reponse.
In a real sense, the international
immune system against aggressive
attack becomes misdirected instead
to defensive response.
Aggressive attack - particularly
in its more frequent contemporary
manifestation of secret guerrilla
war, terrorism, and low-intensity
conflict - is a grave threat to world
order, wherever undertaken. That
threat is intensified, however, when
it is a form of cross-bloc attack in an
area of traditional concern to an op-
posing alliance system. That is ex-
actly the kind of threat presented by
an activist Soviet-bloc intervention
in the OAS area.
The remedy for strengthening
world order is clear: return to the
great vision of the founders of the
U.N. and OAS Charters. Aggressive
attack, whether covert or overt, is
illegal and must be vigorously con-
demned by the world community,
which must also join in assisting in
defense against such attack.
At a minimum, it must be under-
stood that an attacked state and
those acting on its behalf are enti-
tled to a right of effective defense to
end the attack promptly and protect
self-determination.
World order - and the Charter
system - is not an equilibrium
mechanism like global climate. It
can be preserved only if govern-
ments and international institutions,
and the men and women behind
them, have the vision to understand
its importance and the courage and
tenacity to fight for its survival.
John Norton Moore is a profes-
sor of law at the University of
Virginia law school and formerly
served as a counselor on interna-
tional law for the State Depart-
ment. He was a member of the
presidential delegation that ob-
served the elections in El Salva-
dor, and served as special counsel
for the U.S. in the Nicaragua case
at the World Court.
This article is excerpted from
a draft of Mr. Moore's forth-
coming monograph, The Secret
War in Central America and the
Future of World Order, to be pub-
lished in the near future. A
lengthier condensation of the
monograph appears in the cur-
rent issue of The American Jour-
nal of International Law.
T.
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