ON Sept. 21 the United States captured an Iranian minelayer in the Persian Gulf, killing some of its crew in the process. Assuming the facts alleged by the US government to be complete and correct, the incident was unjustifiable and the US will be paying for it in many expensive ways. First, arguing that minelaying is a ``belligerent act'' is no justification for initiating the action against the Iranian ship. Iran has been a belligerent against Iraq for seven years, and belligerency includes rights against neutrals at sea, including the right to interdict neutral vessels on the high seas. ``Neutral'' ships' papers can be checked, because belligerent enemy ownership may be grounds for naval capture and Iran is not legally obliged to accept even reflagging as determinative of beneficial ownership. Contraband is subject to seizure even if carried on a neutral vessel on the high seas. Minelaying can be a part of the exercise of these rights, as the US acknowledged when the British set up mine fields as part of their war against Germany when we were neutrals in the early years of two wars this century. And if the US might want to exercise these belligerent rights, it must respect their exercise by others or abandon the law as an influence for stability and security in the world.
Second, it is irrelevant to Iran's mining the Gulf that our mining of harbors in Nicaragua was held by the World Court to be illegal. The US was not claiming belligerent rights at that place and at that time. Moreover, mining Nicaraguan waters violated Nicaraguan territory. Iranian mining of the Persian Gulf is not an attack on US territory or even on US shipping as such; it is at worst a threat to world shipping, calling for world action. We are not the mine-sheriffs of the Gulf or the policemen of the international legal order, and can derive no right to act from the fact that others do not classify events as the US does.
Third, the tacit encouragement of the Arab sheikhdoms is no basis for our acting. Indeed, since they will not even give the US port facilities to maintain our fleet in their area, the degree of that encouragement appears to have been greatly exaggerated. I suppose they are willing to pay and say a lot in secret. Yet, in the great political game, what is paid in secret is usually revealed, sooner or later, to universal embarrassment, and what is said in secret is legally worthless and politically cheap or self-defeating.
Finally, the international law of self-defense, codified by Daniel Webster when he was secretary of state of the US about 150 years ago and cited by us and others ever since, denies the justifiability of using force unless the necessity is immediate, overwhelming, allowing for no other recourse and no moment for deliberation. But the US has been repeatedly advised that mines can be swept and present no ``imminent'' threat to US forces in the Persian Gulf. Even without discussing the legal effect of the United Nations Charter on this rule, it does not justify our action; and the Charter provides no additional justification for using force except when authorized by the Security Council.
What is likely to be the ultimate cost? The US has placed itself in the front line between two belligerents. We have already been the targets of both; neither accepts our mediation. Unless we change course, or our European and other allies come to the rescue by making the situation multilateral, we are likely to be targets again. And if we defend ourselves, we will spend our treasure and young lives to no apparent national or allied advantage. If the flow of oil from some Sheikhdoms is felt to be militarily obnoxious to a belligerent, and the shipping lanes too well protected to be vulnerable to harassment, the wells themselves will be targeted by commando groups, whom we will call ``terrorists.'' The war will escalate. Worse, by alliance with the US the traditional Arab sheikhs will find their local political bases weakened; they rest on Islamic and tribal law, not on force, or at least not on the force that can be applied by infidels like the US.
The superficial differences mask a deeper analogy to Cambodia's tragedy in the 1960s and 1970s.
The least cost of continuing the current military course would be the loss of US and allied political influence in the oil-rich Arab sheikhdoms and the further rise of fanatic Muslim fundamentalism as an anti-US militant force in the area. I had thought those were the political trends our military presence was supposed to inhibit. History would then have harsh words for us, or pity.
Alfred P. Rubin is professor of international law at the Fletcher School of Law and Diplomacy, Tufts University.