Nicaragua and Nuremberg

The United States, together with Honduras, has begun to accelerate measures designed to ''destabilize'' Nicaragua. Although the US position is being justified in terms of preventing ''aggression,'' this newest ''secret war'' falls on the delinquent side of international law.

This is the case because US covert actions are merely counterrevolutionary operations that subordinate humanitarian concerns to the presumed interests of geopolitics. Indeed, from the point of view of international law, a strong case can be made that Nicaraguan support for the Salvadorean insurgency can be reconciled with the obligations of the international law of human rights.

Understood from this perspective, the issue is not whether Nicaragua is actively involved in the Salvadorean insurgency. Although it is true that the governments of individual states are part of the international legal order and are, therefore, an interest that all states must defend against attack or foreign-assisted subversion, this obligation is reversed wherever particular governments stand in marked opposition to human rights.

Since the end of World War II, there has been a revolution in international legal affairs that obligates states to intervene on behalf of insurgents within other states who are fighting against obvious regime terror. Expanding upon the longstanding principles of ''humanitarian intervention,'' this revolution recognizes the idea of ''just cause'' for insurgency as essential to the requirements of an improved world order.

Although international law has consistently condemned particular acts of international terrorism, it has also made very clear that not all forms of insurgency are instances of terrorism. In fact it has approved certain forms of insurgency that derive from ''the inalienable right to self-determination and independence of all peoples under colonial and racist regimes and other forms of alien domination. . . .'' This exemption, from the 1973 General Assembly Report of the Ad Hoc Committee on International Terrorism, is corroborated by Article 7 of the UN General Assembly's 1974 Definition of Aggression:

Nothing in this definition, and in particular Article 3 (inventory of acts that qualify as aggression) could in any way prejudice the right to self-determination, freedom, and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.

Whether or not Nicaraguan intervention-ary action is essentially consistent with the post-Nuremberg imperative to oppose lawless governments depends entirely upon one's ideological stance. At the moment, the idea that this action constitutes international law enforcement cannot be dismissed out of hand.

The situation is markedly different, however, in regard to US support for Nicaraguan exiles who seek to topple the Sandinista regime. With such support the US is not acting (or even pretending to act) on behalf of the international law of human rights. Rather, it is acting to restore repression to Nicaragua. While this design does not flow from any principled preference for regime terror , but solely from the presumption that such terror is a ''necessary evil'' in the search for cooperative anti-Sovietism in this hemisphere, it represents a prima facie instance of aggression.

In support of the principle that foreign intervention is unlawful unless it is understood as an indispensable corrective to gross violations of human rights , most texts and treatises on international law (an authoritative source of international law according to Article 38 of the Statute of the International Court of Justice) have long expressed the opinion that a state is forbidden to engage in military or paramilitary operations against another state with which it is not at war. Today, the longstanding customary prohibition against foreign support for lawless insurgencies is codified in the UN Charter and in the authoritative interpretation of that lawmaking treaty in Article 1 and Article 3 (g) of the 1974 UN General Assembly Definition of Aggression.

In the aftermath of the World War II holocaust, the philosopher Karl Jaspers considered the question of German guilt. In this connection, he wrote: ''There exists a solidarity among men as human beings that makes each co-responsible for every wrong and every injustice in the world, especially for crimes committed in his presence or with his knowledge. If I fail to do whatever I can to prevent them, I too am guilty.''

Understood in terms of the Reagan administration's refractory disregard for ongoing crimes against humanity in Central America, Jaspers's doctrine suggests an urgent need to confront overriding Nuremberg obligations while there is still time. Should we, as Americans, continue to support only lawless forms of destabilization, we shall surely lose our capacity to bear witness as a righteous people.

From the point of view of the US, the Nuremberg obligations are doubly binding. This is the case because these obligations represent not only current normative obligations of international law, but also the doctrinal obligations engendered by the American political tradition. By their codification of the principle that fundamental human rights are not an internal question for each state, but an imperious postulate of the international community, the Nuremberg obligations represent a point of perfect convergence between the law of nations and the jurisprudential/ethical foundations of the American Republic.

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