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U.S. Must Not Be the Outlaw on Nicaragua

Los Angeles Times July 11, 1986, Friday, Home Edition

Metro; Part 2; Page 5; Column 3; Op-Ed Desk

By David J. Scheffer

Every so often international law pitches a slider at the Reagan Administration, and the home team strikes out. On June 27 the International Court of Justice (known as the World Court) ruled that the United States, by supporting the military activities of the contras in their war against the Sandinista government of Nicaragua, had broken international law and violated Nicaraguan sovereignty.

Both the White House and Congress now must decide whether to ignore the World Court's ruling. Although President Reagan is unlikely to reverse his long commitment to the "freedom fighters" of Nicaragua, Congress still has the opportunity to uphold America's historic commitment to the rule of law.

The Reagan Administration has a deplorable record of establishing the legal premise for its foreign military adventures. Whether it be Grenada, Lebanon, Libya, Angola or Central America, the State Department's explanations of how the United States is complying with international law have been skimpy, tardy and unpersuasive.

In the case of Nicaragua vs. the United States, State Department lawyers did not even try to justify American involvement in the contra war. They participated in the case for the sole purpose of disputing the World Court's jurisdiction to consider this novel suit about the use of armed force. Having lost that argument, the Administration withdrew from the proceedings last year and saw to it that this country's 40-year submission to the compulsory jurisdiction of the World Court terminated in April.

No doubt we will continue to hear the vague argument that the United States is supporting the contras in the "collective self-defense" of Nicaragua's Central American neighbors. But the World Court found that premise baseless. It noted that Washington's original stated purpose for supporting the contras -- to prevent the flow of military arms to leftist guerrillas in El Salvador -- had been overtaken by another objective: to transform Nicaragua into a democracy. In practical terms that means supporting the overthrow of the Sandinista government.

Toward that goal, yet under the rubric of "collective self-defense," just about any means were allowed, including mining Nicaragua's harbors, blowing up oil installations, distributing manuals advocating assassination of public officials, and training, arming, equipping and supplying an army of more than 10,000 (a large number being teen-age boys).

International law, like constitutional law, establishes minimal standards that a government is expected to meet. "Self-defense" has not yet become as malleable a term as "national security" or "national interest." Over the dissent of American Judge Stephen Schwebel, the World Court found that the existing evidence of Nicaraguan aggression dated mainly from 1980 and 1981, failed to show an "armed attack" by Nicaragua on El Salvador, and was insufficient to warrant U.S. military support for the contras.

Try though it might, the Reagan Administration cannot ignore this case. Nicaragua will press its claim for damages not only in the World Court but also before U.S. federal courts, from which the Administration cannot flee. Federal judges may reject the suit for lack of jurisdiction, but it will be a long ordeal that could become a test of constitutional as well as international law.

Rather than totally ignore the World Court's ruling, the Administration could seek a peaceful settlement of the Nicaraguan conflict. The key to that settlement, and to the possible avoidance of further litigation, remains with the Contadora process -- the three-year-old initiative by Latin American leaders to negotiate peace in Central America.

The crusade to bring democracy to Nicaragua should not blind Washington to the rule of law. Like it or not, international law upholds the principles of sovereignty and territorial integrity -- including that of communist states.

For years Congress has become increasingly involved in the making of foreign policy. It cannot escape responsibility for the legitimacy of that policy under international law. That law is not an abstraction; it is a code of behavior that we have held binding on other governments.

Now Congress holds the trump card. Just two days before the court's ruling, the House approved a $100-million aid package for the contras, boldly proclaiming it tobe "in accordance with international law and treaties in force." Unless the Senate, which still must approve the House bill, amends it to address some of the World Court's concerns, Congress will stand before the world community as a co-conspirator in the Administration's violation of international law.

Killing the aid package would extract America from an illegal, dirty little war that only props up the politically ambitious contra leaders. Short of that, at a minimum, the Senate should require that before military funds are released both the President and the special congressional commission on negotiations provide detailed assurances that the aid complies fully with international law.

At least that would compel members of Congress and the President to read the World Court ruling carefully. David J. Scheffer is a lawyer and an international-affairs fellow of the Council on Foreign Relations in New York.
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