The confrontation between the reagan administration and Libya over the gulf of sidra and terrorism
What Is Terrorism?
Upon its ascent to power in January of 1981, the Reagan administration forthrightly proclaimed its intention to replace President Carter's purported emphasis on human rights with a war against international terrorism as the keystone of its foreign policy.1 The Reagan administration's specious argument was that terrorism constituted the ultimate denial of human rights and therefore, in a classic nonsequitur, somehow justified the renewal of military and economic assistance for the then repressive regimes in Argentina, Guatemala, Chile, and the Philippines,2 as well as warranting the destabilization of Colonel Qaddafi's rule in Libya, among other such nefarious projects.3 This inversion of priorities for the future conduct of American foreign policy was perversely misguided and should have been immediately repudiated by the American people.
"Terrorism" is a vacuous and amorphous concept entirely devoid of any accepted international legal meaning, let alone an objective political referent.4 The standard cliche that "one man's terrorist is another man's freedom fighter" is not just a clever obfuscation of values. It indicates that the international community has yet to agree upon a legal or political meaning for the term "terrorism." For example, even the U. N. Ad Hoc Committee on International Terrorism could not agree upon a definition for the word "terrorism."5 Yet due to the transnational character of "terrorist" violence, the establishment of multinational consensus and international cooperation is the only way that wanton attacks directed against innocent civilians around the world can be adequately combatted.6
The pejorative and highly inflammatory term "terrorism" has been used by the governments of the United States, Britain, the Soviet Union/Russia, Israel, and apartheid South Africa, among others, to characterize acts of violence ranging the spectrum of human and material destructiveness from common crimes to wars of national liberation. One state's invocation of a holy war against international terrorism may constitute effective governmental propaganda designed to manipulate public opinion into supporting a foreign policy of aggression premised on considerations such as Hobbesian power politics. But it cannot serve as the basis for conducting a coherent and consistent global foreign policy in a manner that protects and advances a state's legitimate national security interests in accordance with the requirements of international law.7
For example, the Reagan administration was elected in part on the specious claim that the Carter administration's general "softness" had been responsible for an alleged increase in international terrorist attacks during the latter's tenure. Thus, shortly after entering office, Director of Central Intelligence William Casey ordered the C. I.A. to conduct a study on international terrorism designed to document their unsubstantiated campaign rhetoric. But when finally produced, the C. I.A. study did not list enough terrorist incidents to support the administration's assertions. Not being content with the truth, Casey ordered the C. I.A. to change its definition of terrorism in a manner that would substantiate the Reagan administration's irresponsible claims. Whereupon the C. I.A. broadened its definition of "terrorism" and dutifully complied with Casey's ukase by issuing a new report that doubled the number of terrorist attacks documented in the previously rejected report.8
The truth of the matter was that starting in the mid-1970's there had occurred a significant decline in the number of so-called terrorist attacks against the United States by the various Palestinian groups operating out of the Middle East. This was because the United States government had worked very hard at the United Nations, the International Civil Aviation Organization, and the International Committee of the Red Cross (I. C.R. C.) negotiations at Geneva and in all other available forums to convince the PL. O. as well as Arab states that terrorism was counterproductive in the sense that it would not help advance their cause but rather would retard it in the estimation of U. S. and European public opinion. By the end of the decade, that message had gotten through.9
Despite these serious reservations about the practical utility of employing the term "terrorism" and its numerous derivatives, I will use it here even though that term obscures more than it clarifies. For analytical purposes, I would prefer to talk about "transnational violence perpetrated by non-state actors against members of the civilian population for political reasons." Nevertheless, for want of a better term, I will use the words "terrorism" and "terrorists," but only because they have entered into popular acceptation, and always subject to the above reservations and qualifications. We must never forget that the overwhelming majority of terrorist acts—whether in number or in terms of sheer human and material destructiveness—have been committed by strong states against weak states, as well as by all governments against their own citizens: State Terrorism.
The Israeli Origins of the Reagan Administration's War Against International Terrorism
With the advent of the Reagan administration in 1981, the overall foreign policy of the United States government toward the Middle East dramatically changed. The Reagan administration became the most vigorously pro-Israeli government that had ever been experienced in the United States of America up to that point in time. Large numbers of the foreign affairs and defense appointees brought in by the Reagan administration were themselves ardent supporters of the state of Israel: the neoconservatives. Operating under the mistaken assumption that what was good for Israel was by definition good for the United States, they put the interests of Israel first and those of the United States second when it came to the formulation of American Middle East foreign policy.
The Israelis had always been arguing a very tough line against international terrorism even though, in fact, what they actually did was quite different from what they said they were doing. Although successive Israeli governments had said that a state should never negotiate with international terrorists, the fact of the matter was that Israeli leaders had always so negotiated when innocent Israeli lives were at stake. This is not to say that such negotiations occurred to the exclusion of or even in preference to the implementation of military options. But rather, that successive Israeli governments had always been willing to strike deals with known "international terrorists" if they believed there was a reasonably good chance that this would result in the safe release of their own people. When it came to the lives of their citizens, Israeli actions had always been far more humanitarian than Israeli words and propaganda.
Not so with the Reagan administration, which was so enamored of the tough Israeli rhetoric that it proceeded to pattern American Middle East foreign policy on what the Israelis said was their approach to fighting their war against international terrorism. Thus, under the aegis of the Reagan administration, America and the world witnessed the progressive Israelization of U. S. foreign policy toward the Middle East. The Reagan administration proceeded to adopt the same type of philosophy, rhetoric, tactics and at times illegal and reprehensible behavior that Israel's Begin/ Sharon government was then practicing against Arab states and peoples throughout the region.
But as my Professor of International Relations, Hans Morgenthau, was fond of saying about U. S. deference to the wishes of the South Vietnamese government: "This is a case of the tail wagging the dog!" The United States and Israel occupy very different positions concerning the means whereby to best secure their respective national interests and promote their different value systems. For the Reagan administration to have pursued a policy premised upon the illegal threat and use of military force simply turned America even further into a garrison state like Israel, especially in the Middle East.
Terrorism as a Response to the Invasion of Lebanon
The above considerations put into context the reason why there occurred a resurgence of so-called terrorist actions against U. S. citizens, and against airplanes, facilities, programs, etc. affiliated with the United States government located abroad during the tenure of the neoconservative Reagan administration. As a direct result of the 1982 Israeli invasion of Lebanon, more than 20,000 people were killed. The vast majority of the victims were Palestinians and Lebanese Muslims who were quite wantonly destroyed by means of weapons, equipment, supplies, money, and diplomatic and political support provided by the United States government to Israel and to the "Christian" Phalange militia during the course of the invasion and its aftermath. The Arab peoples of the Middle East held the United States government fully responsible for all atrocities against the civilian population of Lebanon that were undeniably perpetrated by the Israeli army and air force as well as the Phalange militia. Under basic principles of international law, they certainly had a perfect right to do so.
Common article 1 to the Four Geneva Conventions of 1949 required that a party to the Conventions such as the United States must not only "respect" the Conventions itself but also "ensure respect" for the terms of the Conventions by other contracting parties such as Israel "in all circumstances."10 The United States government completely failed to perform its obligations under the Geneva Conventions to make sure that the Israelis obeyed the laws and customs of warfare during the course of their invasion of Lebanon by means of denying them access to U. S. weapons, equipment, and supplies. Indeed, from all the indications in the public record, it appeared that instead, the United States government consented and connived in advance to this illegal invasion.11
As a result of the 1982 Lebanon invasion, the entire P. L.O. infrastructure was destroyed and as a result, the ability of Arafat and his particular organization, Al Fatah, to control the other Palestinian groups was significantly diminished. These anti-Arafat Palestinian groups proceeded to undertake a series of terrorist attacks against U. S. interests around the Mediterranean that were launched from their respective headquarters in the Syrian-controlled Bekaa valley or in Damascus itself. In addition, the Shiites in Lebanon also proceeded to undertake terrorist attacks against Americans by means of hijacking airplanes, kidnapping U. S. citizens, assassinations, bombings and atrocities of this nature, whereas prior to Israel's 1982 invasion, the Shiite population of Lebanon had been basically quiescent. Thereafter, U. S. support for both the Israeli invasion and the latter's continued occupation of southern Lebanon provided the immediate reason why these devoutly religious people decided to fight back against the interests of the United States and Israel in whatever primitive manner they could. Hence Hezbollah became a national liberation movement.
The American people could not even begin to comprehend how to deal with the problem of international terrorism in the Middle East unless they first came to grips with the fact that the Reagan administration was directly responsible for the perpetration of one of the great international crimes in the post World War II era against the Palestinians and Muslim peoples in Lebanon. Only if America is willing to face up to its collective responsibility under international law for this crime against humanity can it then proceed to make some progress on the problem of international terrorism. Until that time, Americans will continue to become targets of attack by these frustrated and aggrieved individuals throughout the Middle East and the Mediterranean.
The Reagan Administration's War Against International Law
The Reagan administration pursued a unilateralist antiterrorism policy that was essentially predicated upon the illegal threat and use of U. S. military force in explicit and knowing violation of article 2(4) of the United Nations Charter.12 Their preferred measures included military retaliation and reprisal, preemptive and preventive attacks, kidnapping suspected terrorists, hijacking aircraft in international airspace, destabilization of governments, fomenting military coups, assassinations, and indiscriminate bombings of civilian population centers, etc. Predictably, the results proved to be quite negligible in terms of accomplishing their purported objectives and most counterproductive for the purpose of maintaining international peace and security. Witness the needless deaths of over 300 U. S. marines and diplomats in Lebanon as a direct result of the Reagan administration's illegal military intervention into that country's civil war in order to prop-up a supposedly pro-Western regime that was imposed by the Israeli army. Both of the latter were guilty of inflicting barbarous outrages upon the Palestinians and Muslim peoples of Lebanon.
The foremost proponents of such reprehensible counterterrorism policies were Secretary of State George Shultz and his Legal Adviser, former U. S. federal district judge Abraham Sofaer. One of the great ironies of the Reagan administration proved to be the fact that its Secretary of State was consistently far more bellicose than its Secretary of Defense, Caspar Weinberger. Indeed, what little restraint that was demonstrated by the Reagan administration when it came to the illegal threat and use of military force generally originated from the Pentagon, not the State Department. Whenever Shultz failed to obtain his foreign policy objectives by means of diplomacy, his standard fallback position was to call for the threat and use of U. S. military force--whether in Lebanon, the Persian Gulf, Central America and the Caribbean, Libya, or to combat international terrorism.13 If the U. S. government and American citizens became special targets for attack by international terrorist groups, this phenomenon was directly attributable in substantial part to the Reagan administration's primary reliance upon the illegal threat and use of military force as an ultimately self-defeating substitute for its bankrupt foreign policies--especially toward the Middle East.
The Perversity Behind the Shultz Doctrine
The operational premise behind the so-called Shultz Doctrine was that the Reagan administration should fight international terrorism by means of American sponsored counterterrorism. This rationale constituted a most pernicious assault upon the U. S. government's historical commitment to upholding the rules of international law and promoting the integrity of the international legal order. Just because some of the adversaries of the United States might pursue patently illegal policies in their conduct of belligerent hostilities provides absolutely no good reason why the American government should automatically do the exact same thing. The United States of America has to analyze the equation of international relations in light of both its own vital national security interests and its own cherished national values.
In particular, America cannot abandon or pervert its national values simply because its adversaries might not share them. Likewise, America cannot ignore its vital national interest in preserving the rules of international law and upholding the integrity of the international legal order simply because its adversaries might not share that exact same interest. If America mimics international terrorists, then America gradually becomes like them and eventually becomes indistinguishable from them in the eyes of its allies, friends, neutrals, and, most tragically of all, its own citizens. During the tenure of the Reagan administration, the United States government became just as terroristic and Hobbesian in its conduct of foreign affairs as many of America's international adversaries undoubtedly were.
The Sofaer CoroMary
The paradigmatic example of the Reagan administration's mirror-image reasoning process with respect to international terrorism was provided by the then new Legal Adviser to the United States government in a speech he gave before a plenary session of the American Society of International Law Convention devoted to the World Court on April 10, 1986, shortly after President Reagan had decided to bomb the Libyan cities of Tripoli and Benghazi.14 There former Judge Abraham Sofaer did his best to justify a perverse innovation in the theory of international law and the practice of international relations: namely, that the United States government possesses some god-given right to resort to the use of military force in alleged self-defense as unilaterally determined by itself alone.
In light of the fact that earlier that same day the Society had commemorated the Fortieth Anniversary of the Nuremberg Tribunal, it was striking and indeed saddening that the Legal Adviser was making an argument similar to that put forth in defense of the Nazi war criminals before the Nuremberg Tribunal in 1945 with respect to the nonapplicability of the Kellogg-Briand Pact of 1928.15 This "Paris Peace Pact" had formally renounced war as an instrument of national policy. However, when signing the Pact, Germany entered a reservation to the effect that it reserved the right to go to war in self-defense as determined by itself. So when in 1945 the Nazi war criminals were indicted for crimes against peace on the basis of the Kellogg-Briand Pact, they basically argued that the Second World War was a war of self-defense as determined by the German government, and therefore that the Nuremberg Tribunal had no competence to determine otherwise because of Germany's self-judging reservation. Needless to say, the Tribunal summarily rejected this preposterous argument and later convicted and sentenced to death several Nazi war criminals for the commission of crimes against peace, among other international crimes. Seven decades after Nuremberg, the critical question becomes whether America will preserve its fundamental commitment to the rule of law both at home and abroad, or abandon all pretense of honoring the rule of law, whatsoever.
The Hypocrisy Behind the Reagan Administration's Antiterrorism War Against Libya
Starting in January of 1981 a lot of hot air had been expended in the United States about how the American government should best
Deal with the so-called problem of international terrorism. Most of this discourse was completely self-serving. The Reagan administration proceeded to act in a manner similar to that of a doctor treating only the symptoms of a disease, rather than the root causes of the disease itself. For example, if the United States government seriously wished to alleviate the interrelated problems created by international terrorist actions directed against American interests around the world, then the first and most effective step it could have taken in this direction would have been to finally implement the international legal right of the Palestinian people to self-determination and a state of their own. Further, all the vices, defects, and hypocrisies characteristic of the Reagan rhetoric on terrorism can be demonstrated by reference to its aggressive actions toward Libya from the very outset of the former's tenure in office.16 The outstanding series of crises between the United States and Libya over the latter's alleged support for international terrorism presents the paradigmatic example of the fatally flawed and dissembling nature of the Reagan administration's self-styled war against international terrorism.
On January 7, 1986 President Reagan conducted a news conference in which he announced that sanctions were being taken against Libya because there existed "conclusive" evidence that Colonel Qaddafi was involved in two terrorist attacks that occurred on December 27 near El Al ticket counters at airports in Rome and Vienna, resulting in the loss of twenty lives, five of whom were American.17 The commandos killed in Rome carried notes justifying the attack as a reprisal for the Israeli air raid on the P. L.O. headquarters near Tunis in August of 1985, which in turn was justified as a reprisal for the P. L.O. assassination of Israeli "tourists" in Cyprus. This latter incident was, in turn, justified on the grounds that the so-called tourists were really Mossad agents monitoring the movement of P. L.O. fighters from Cyprus to Lebanon for the purpose of directing Israeli naval operations designed to intercept them on the high seas.18 Etc., ad infinitum and ad nauseam.
President Reagan claimed that while responsibility for the Rome and Vienna attacks "lies squarely" with the Abu Nidal organization (whomever it really worked for!), "these murderers could not carry out their crimes without the sanctuary and support provided by regimes such as Col. Qaddafi's in Libya."19 Consequently, the President ordered that all economic transactions between the United States and Libya essentially be terminated and that all Americans living or working there must leave by February 1 upon pain of criminal prosecution.20 The next day the President ordered a freeze of Libyan assets held in the United States as well as Libyan assets held in subsidiaries of U. S. banks located abroad.21 Somewhat curiously, however, an exemption from this economic pullout was later given to U. S. oil companies doing business in Libya, though under public pressure it was later withdrawn effective June 30.22
All of this transpired in an atmosphere of increasingly bitter rhetoric between the two countries. The Reagan administration immediately dispatched two aircraft carrier task forces to the Gulf of Sidra and Colonel Qaddafi responded by stating that in the event of an armed attack upon Libya he would send suicide squads into the streets of the United States to strike targets there.23 Perhaps the lowest point in the public debate was reached by Senator Howard Metzenbaum when he suggested in a television interview that the United States government should give serious consideration to assassinating Colonel Qaddafi.24 Little did he know that the Reagan administration had already decided affirmatively to do so.25
After two sets of U. S. naval maneuvers outside the Gulf of Sidra during January and February of 1986, and with the arrival of a third naval task force organized around the aircraft carrier America, the Reagan administration was finally prepared to penetrate the Gulf of Sidra south of the closing line which Libya had drawn across its mouth at 32°30" in 1973.26 This calculated decision precipitated a military conflict between the United States and Libya on March 24, 1986 that lasted over a period of three days and resulted in the successive destruction of two Libyan naval craft, one SAM-5 missile site, and the loss of approximately thirty Libyan sailors.
Shortly after the completion of this U. S. military action against Libya, a bomb exploded on a T. W.A. commercial passenger jetliner flying between Rome and Athens, killing four Americans. The group that took responsibility for the bomb attack called it an act of retaliation for U. S. military aggression against Libya, though no evidence established a Libyan connection to this attack and U. S. officials expressed doubt that Libya had ordered the bombing.27 This was followed by the explosion of a bomb at a discotheque in West Berlin frequented by American soldiers, resulting in the death of two U. S. servicemen and a Turkish woman as well as injuries to scores of other U. S. soldiers.28 The Reagan administration promptly blamed Colonel Qaddafi for this latest anti-American attack, and ordered two U. S. aircraft carrier battle groups back to the Gulf of Sidra for further action.29
On April 14, 1986, the Reagan administration launched a bombing run against various targets in and near Tripoli and Benghazi, the two major metropolitan areas in Libya, by means of U. S. Air Force bombers stationed in England and U. S. naval aircraftfrom the carriers off the Gulf of Sidra.30 The nighttime attack (occurring at 2:00 a. m. April 15, Libyan time) utilized British-based F-111 bombers equipped with "terrain avoidance radar" that were accompanied by EF-111 electronic jamming planes.31 The 18 F-111s were refueled four times in flight by KC-10 and KC-135 fuel tankers during their 2,800 nautical mile journey. A circuitous route down the eastern coast of Europe and through the Straits of Gibraltar was necessitated by the fact that the governments of France and Spain had refused overflight permission.32
While the F-111s approached Tripoli, A-6 bombers and A-7 and F-18 attack aircraft from the U. S.S. America and Coral Sea stationed near the Gulf of Sidra prepared to attack targets in Benghazi. These naval aircraft fired dozens of Shrike and high-speed antiradiation missiles (HARMS) to destroy the radar capabilities of Libyan antiaircraft batteries, while the EF-111s jammed Libyan electronic defenses. Laser-guided "smart bombs" fired from the F-111s and the A-6s struck at five targets around Tripoli and Benghazi, including the home and headquarters of Qaddafi at the El Azziziya barracks in Tripoli. Reports indicated that the damage inflicted in these attacks actually could have been much greater in as much as seven of the 32 attacking aircraft aborted their missions. One F-111 and its two-member crew were reported to have been the only casualties experienced by U. S. forces during this operation.33
These attacks resulted in the deaths of approximately 40 people and injury to approximately 200 more, almost all of whom were civilians.34 In response to the severity of these bombing raids, various terrorist groups in the Middle East and Europe took vengeance upon the United States and Great Britain. In the aftermath of the April raid, these groups carried out a fairly large number of bombings, assassinations, and armed attacks against American and British citizens, diplomatic missions, and business interests around the world: the shooting of an American communications specialist at the U. S. embassy in the Sudan; the shooting deaths of two British school teachers and an American near Beirut; the abduction of a London-based Worldwide Television News bureau chief in Beirut; the thwarted bombing attempt of an El Al airplane about to leave London's Heathrow airport for Tel Aviv; and a firebombing incident at a U. S. Marine compound in Tunis, among others.35
Thus, haughty predictions uttered by members of the U. S. government that the bombings of Tripoli and Benghazi would somehow reduce the incidence of terrorist attacks against Americans proved to be wrong.36 In direct reaction thereto, the Reagan administration decided to maintain U. S. aircraft carrier task forces in the vicinity of the Gulf of Sidra for the indefinite future.37 These task forces and their complement of aircraft continued to engage in provocative military maneuvers near, in, and around Libya and the Gulf of Sidra.38
Prior to all these events, I had spent one week in Libya as a guest during May of 1985 to discuss the current state of U. S.-Libyan relations and what if anything could be done to improve them. Most probably, I had been one of the very few professional American academics to have so visited Libya for this purpose since the Reagan administration invalidated U. S. passports for travel to that country in December of 1981.39 Although having traveled to Libya in a manner that was explicitly approved by a State Department letter to me, for obvious reasons I did not wish to draw much attention to the fact that I had been there. Nevertheless, in light of the ominous development of events that occurred between the United States and Libya after Rome and Vienna, in mid-January of 1986 I decided to break my silence and publicly offered whatever insights I might have been able to shed upon the then escalating crisis in U. S.-Libyan relations.40 I started a one-man national campaign to prevent the looming major military attack against Libya by the Reagan administration. I failed.
Both at the time and in retrospect, it was obvious that the Reagan administration purposely moved toward initiating this major military confrontation with Qaddafi, and utilized whatever pretexts it could invent under international law and otherwise to justify such provocative measures to the American people in a bid to obtain their active support for an undeclared or even formal war. There existed no justification for this belligerent policy under basic principles of international law, and no underlying rationale according to fundamental considerations of U. S. national security interests. Direct U. S. military action against Libya only proved to be counterproductive in terms of maintaining international peace and security in the Middle East; of mobilizing currently existing forms of Libyan internal opposition to Qaddafi; and of avoiding a potential military confrontation between the United States and the Soviet Union in the Mediterranean. U. S. military intervention to destroy Qaddafi proved to be a monumental blunder for the future course of American foreign policy toward Arab states and Muslim peoples around the world.
To put it bluntly, whatever benefit might be derived therefrom, the overthrow of Colonel Qaddafi was not worth the life of even one U. S. serviceman, let alone the two men America already lost in April of 1986. I challenged any member of the Reagan administration to elaborate a rational and convincing argument to the contrary without blustering about some U. S. god-given imperative to destroy international terrorism despite the rules of international law. As the Reagan administration's aggressive policy toward Libya proceeded unchecked by the American people, the Gulf of Sidra could have readily become the 1986 equivalent of the Gulf of Tonkin.
The 1981 Gulf of Sidra Incident
The first point that must be kept in mind with respect to developing any sound comprehension of the prolonged crises in U. S.-Libyan relations was that the Reagan administration had been attempting to overthrow Qaddafi since the former came into power in January of 1981.41 One of the very first projects ever submitted by C. I.A. Director William Casey to the Congressional Committee dealing with the oversight of intelligence activities and covert operations was a plan to overthrow Qaddafi.42 To the best of my knowledge, that had been standing U. S. policy since the Reagan administration came into office, and they attempted to carry out this illegal endeavor both directly by themselves and indirectly by means of working with various Libyan exile groups around the world,43 as well as by fomenting numerous internal military coups against Qaddafi.44
This fact puts into context claims by the Reagan administration that Qaddafi sponsored assassination attacks against Libyan exiles around the world, including in the United States. In light of the previous history of U. S. supported coups, one could not blame Qaddafi for believing that the Reagan administration's obvious and admitted attempt to overthrow him would include within that plan his murder or assassination. In this regard, witness what had already happened to Diem in Vietnam, Lumumba in the Congo, Allende in Chile, the Kennedy administration's numerous attempts to assassinate Castro, and more recently, repeated attempts to assassinate leaders of the Sandinista government in Nicaragua following the strategy outlined by the Reagan administration in its infamous Contra "Psyops"Manual. If the Reagan administration really would have liked to have seen an end to so-called terrorist attacks against Libyan exiles in the capitals of Europe that it attributed to Libya, then perhaps it should have first terminated its plan to overthrow, murder, and assassinate Qaddafi and using such groups as a means toward that end.
At this point in the analysis it becomes necessary to understand what happened back in the summer of 1981 during the first Gulf of Sidra incident if we want to comprehend the later stages of the outstanding series of crises between the United States and Libya.45 As mentioned above, one of the very first steps undertaken by the Reagan administration upon its assumption of power was to adopt a plan calling for the overthrow of Qaddafi. As part of that plan, it contemporaneously reversed the Carter administration's policy of not sending the Sixth Fleet into the Gulf of Sidra in order to forcefully contest the Libyan's claim to treat the latter as "internal waters."46
Pursuant thereto, in February of 1981 the Reagan administration began planning for Sixth Fleet military maneuvers to be held that summer, this time below 32°30' north latitude, the so-called "line of death" described by Qaddafi.47 As one Reagan administration official put it, they decided to penetrate the Gulf "because the principle of the open seas is important--and because we wanted to tweak Qaddafi's nose."48 The 1981 Gulf of Sidra incident was a clear-cut military provocation by the Reagan administration that was purposefully designed to provoke Qaddafi into a major military conflict in the hope and expectation that a decisive defeat could initiate a military coup that would result in Qaddafi's deposition.
As best as can be reconstructed from the public record and my research in Libya, what happened in the summer of 1981 was this: The Sixth Fleet was ordered to go on maneuvers into the Gulf of Sidra. It proceeded into what the Libyans claim to be their internal waters, and the United States government called high seas. The validity of their respective claims under international law will be analyzed below. Suffice it to say here that the Libyans were especially concerned by the fact that the U. S. ships and then later their fighter aircraft were sent upon hostile military maneuvers in the direction of the major Libyan oil installations located around the southern rim of the Gulf. Of course oil represents Libya's only major economic resource apart from underground water.49
The Reagan strategy was that Libya would be forced to defend itself against this hostile military threat by sending up its entire air force to combat the Sixth Fleet and its accompanying aircraft, whereupon the Sixth Fleet would easily destroy the entire Libyan air force, thus precipitating an internal military coup against Qaddafi, who was not in the country at the time. The former task could have been easily accomplished by utilizing the same type of sophisticated technology that the Israeli government successfully employed during its 1982 invasion of Lebanon to destroy most of the Syrian air force in one afternoon without experiencing any casualties in return.50 In this regard the so-called Hawkeye command plane would have had the most critical role to play in vectoring U. S. jet fighters against enemy aircraft before the latter were even aware that they were under attack. Despite the Reagan administration's fatuous claims to the contrary, such aircraft do not simply serve a surveillance purpose, but represent a formidable offensive threat.
But the Libyans were smart enough not to fall into Reagan's trap. Instead, they marshalled their airplanes above the cities of Tripoli and Benghazi as well as over the oil fields, waiting for a U. S. attack to occur. Keeping the Libyan aircraft over land would afford them some protection by the short-range Soviet surface-to-air missiles then in the possession of the Libyans, whereas a fight over the Gulf of Sidra would have pitted clearly inferior Libyan jet fighters directly against advanced American fighter aircraft under the supervision of the Hawkeye system.
As the fabled F-14 Tomcats approached to within approximately 30 miles of the Libyan coastline and oil installations, Libya apparently sent out two Sukhoi jet fighters to intercept them and ward them off from engaging in any further penetration of disputed Libyan airspace. It was those two Libyan planes that were shot down by the Tomcats in a totally unequal fight. Yet the Libyans could still not be provoked and continued to hold the rest of their planes in reserve over land. It was Libya's wise decision not to be drawn into an all-out fight with Sixth Fleet aircraft above the Gulf of Sidra that led to the termination of the crisis at this particular point in time.51
I should point out that the United States government itself maintains an air defense identification zone (ADIZ) around its own borders, in some places extending outward three hundred miles from its shores.52 Therein any unidentified aircraft will be intercepted by U. S. jet fighters and escorted out of this zone, or forced to land, or else presumably destroyed. Based upon its own precedent, the U. S. government was estopped to deny that Libya had a right to do the exact same thing, especially in order to protect its vital oil fields from imminent threatened destruction. After all, both the United States government and several other members of the international community claim the right to establish such air security zones on the grounds of "national security" despite the provisions of the Chicago Convention to the contrary.53 Sauce for the goose is sauce for the gander.
Who Fired First?
The Reagan administration's account of the aerial combat between U. S. and Libyan fighters over the Gulf of Sidra in the summer of 1981 defied credulity.54 First, all military analysts agreed that the Tomcats completely outclassed the Sukhois in all relevant military characteristics. It would have been a suicide mission-pure and simple--for the Libyan Sukhois to have fired first upon the American Tomcats. Despite Qaddafi's rhetoric as well as propaganda by the Reagan administration to the contrary, the vast majority of Libyan people are not "Muslim fanatics" who are prepared to commit suicide attacks in the pious expectation that this will gain them immediate entry into Paradise.
Second, the Reagan administration's claim that the Sukhois fired first upon the Tomcats is highly suspect. The Reagan administration's account runs to the effect that the Sukhois fired their heat-seeking missiles first while directly approaching the Tomcats. But it would make no sense at all to fire heat-seeking missiles in the direction of oncoming aircraft. Normally, such missiles have to be fired behind, not in front of, enemy aircraft in order to have any chance at all of homing onto their target. Moreover, it is also extremely doubtful that the Sukhois could have been able to maneuver behind the superior Tomcats, and the Reagan account never said they attempted to do so. In the unlikely event that they had even tried, due to the superior performance and sophisticated technological defenses of the Tomcats, it would have been extraordinarily difficult for the Sukhois first to have outmaneuvered and then to have destroyed the Tomcats. Hence all the more reason for the Sukhoi pilots not to have fired first upon the Tomcats.
Irrespective of who fired first, the vectoring of Tomcats in attack formation toward the Libyan oil installations around the Gulf of Sidra constituted a clear-cut violation of article 2(4) of the United Nations
Charter prohibiting the threat or use of force against the territorial integrity or political independence of a state. The U. S. provocation also violated the article 2(3) requirement that it settle this dispute with Libya over the status of the Gulf of Sidra in a peaceful manner. Under these circumstances, the Libyans had a perfect right to defend themselves by necessary and proportionate means against this U. S. "armed attack" or, to follow the French version of the Charter, "armed aggression" under article 51 thereof.
Use It or Lose It?
Whatever the legal merits of the Gulf of Sidra dispute between the United States and Libya, international law certainly provided no justification for the Reagan administration to have continually sent the Sixth Fleet in there in order to provoke a military confrontation for the expressed purpose of overthrowing Colonel Qaddafi. The argument by the Reagan administration that it had to send the fleet into the Gulf periodically in order to demonstrate that the United States government did not recognize Libya's claim to the Gulf was utter nonsense. When the Libyans attempted to draw a closing line across the Gulf of Sidra back in 1973, the United States government publicly stated that it would not recognize the legal validity of this action. Under contemporary standards of international law, that was certainly enough to preserve whatever rights of access the U. S. government might purportedly have to the Gulf of Sidra.
The Reagan administration nevertheless attempted to justify such provocative military maneuvers by relying upon the alleged customary international law doctrine popularly known as "use-it-or-lose-it."55 Yet, whatever validity and meaning this alleged doctrine might have had prior to the promulgation of the United Nations Charter in 1945, it can no longer be construed in a manner to authorize hostile military action in explicit violation of articles 2(3) and 2(4). Undaunted by such legal technicalities, the Reagan administration quite consistently and most disingenuously invoked this pre-Charter doctrine in order to spread a thin veneer of legal respectability around its otherwise belligerent policies for the consumption of U. S. domestic and international public opinion.
Article 33 of the United Nations Charter enunciates the basic rule of customary international law that parties to any dispute likely to endanger international peace and security must first exhaust all peaceful means to achieve a solution. This requirement would include negotiation, enquiry, mediation, conciliation, arbitration or judicial settlement, among other such procedures. The dispute between the United States and Libya over the Gulf of Sidra was a clear-cut legal issue that could have been easily resolved by the International Court of Justice or by an international arbitration tribunal. But the Reagan administration willfuNy rejected all overtures made by Qaddafi to peacefully settle the longstanding crises between the United States and Libya over the Gulf of Sidra as well as his alleged support for international terrorism.56
A World Court Option
Indeed, despite the fact that the official Libyan position was that the Gulf of Sidra was part of their sovereign territory and therefore its status was not susceptible to international adjudication or arbitration, one of the reasons for which I was invited to Libya in 1985 was to discuss the potential for Libya to bring a complaint against the United States in the International Court of Justice over this matter. Such a lawsuit would have required Libya to have accepted the compulsory jurisdiction of the World Court under article 36(2) of its Statute, to which the United States government was a party at the time.57 If this had occurred, Libya could have proceeded against the United States under Statute article 36(2)(b), which gives the Court jurisdiction in all legal disputes concerning "any question of international law." Here the narrow issue would have been whether or not Libya was entitled to claim the Gulf of Sidra as internal waters.
In addition, the Libyans could have also sought from the World Court an indication of provisional measures of protection under Statute article 41 to the effect that the United States government would be obligated to refrain from any threat or use of force in order to contest the Libyan claim to the Gulf of Sidra while the matter was subjudice. In this regard, the World Court's previous indication of provisional measures in the Nicaragua case was directly on point.58 I explained to the Libyans that the World Court's indication of provisional measures in the Nicaragua case played an important role in the internal debate within the United States over restraining the Reagan administration's military aggression against Nicaragua, particularly with respect to inhibiting funding for the contras by Congress. There was no guarantee that the same would happen with respect to Libya, a far more difficult case in the estimation of U. S. public opinion. Nevertheless, a World Court suit along these lines was at least worth a try since the Reagan administration clearly intended to take further military action against Libya by means of using the disputed status of the Gulf of Sidra as a pretext.
At the time of my visit, the Libyans were quite skeptical that the Reagan administration could be expected to live up to any World Court decision. This was because of the latter's January 15, 1985 decision to withdraw from any further proceedings in the Nicaragua case because of the Court's 26 November 1984 determination that it did indeed have jurisdiction to entertain Nicaragua's complaint against the United States on the merits.59 For the same reason, in October of 1985, the Reagan administration then completely repudiated the compulsory jurisdiction of the International Court of Justice, rendering my proposed lawsuit against it by Libya over the Gulf of Sidra impossible under I. C.J. Statute article 36(2)(b).60
By contrast, the Libyans had a fairly good track record at submitting disputes to the International Court of Justice. In the recent past, for example, Libya had settled disputes with Malta and Tunisia over the delimitation of their respective continental shelves by means of World Court adjudication.61 In a similar vein, it would have been possible for the United States government to have offered to conclude a compromis with Libya for the submission of the dispute over the status of the Gulf of Sidra to the International Court of Justice under article 36(1) of its Statute. But the odds of this occurring during the Reagan administration were infinitesimal precisely because the latter wished to preserve an outstanding dispute over the Gulf of Sidra as a convenient pretext for renewing direct military action against Libya for the purpose of overthrowing Qaddafi whenever deemed expedient.
The Status of the Gulf of Sidra
When I visited Libya in May of 1985, I told the Libyans that the Reagan administration clearly intended to attack them again in the event that another pretext could be found. I cautioned that although they certainly had a perfect right to defend themselves under international law, in the event Reagan provoked them, they should not engage in any type of counter-provocations against Reagan because he was an extremely dangerous man. The Reagan administration would only use their counterprovocations in order to escalate tensions into major overt hostilities that they were not really in much of a position to defend themselves against. In my opinion at the time, the immediate pretext for another U. S. attack upon Libya would be over the Gulf of Sidra. The Libyans claimed that they have a right to draw what international lawyers call a closing line across the headlands of the Gulf of Sidra and therefore treat the Gulf as their internal waters, not as high seas or even territorial waters. Under international law, internal waters are treated just as if they were an integral part of the land and are completely subject to the territorial sovereignty of the coastal state.62 The same would be true for airspace above internal waters.
Thus, there is no right of "innocent passage" through internal waters. This would be in contrast to the territorial sea, where international law does recognize a right of innocent passage.63 But even this latter right would not include within its scope the Sixth Fleet on maneuvers or transiting in any manner designed to threaten the security or independence of the coastal state as it had repeatedly done to Libya.64 Moreover, there is no right of innocent passage for U. S. jet fighters to transit the airspace above the territorial sea of another state for any reason.
The Libyans claimed, and the United States recognized their right to claim, a twelve mile territorial sea. Hence, according to the Libyan claim, the Sixth Fleet, including its aircraft, would only be able to traverse the high seas that are located twelve miles seaward of the closing line drawn across the Gulf of Sidra.65 It would not be "innocent passage" for the Sixth Fleet to maneuver through these territorial waters, and there would certainly be no right for U. S. fighter aircraft to penetrate the column of airspace above these territorial waters for any reason. And even when U. S. battleships and fighter aircraft went on hostile maneuvers outside the Gulf on the high seas and in international airspace as recognized by Libya, this still constituted a blatant violation of article 2(4) of the U. N. Charter since such maneuvers represented a threat of force directed against Libya's territorial integrity (i. e., the Gulf of Sidra as internal waters) and political independence (i. e., the overthrow of Qaddafi).
On the other hand, the United States government took the position that the Libyans were not entitled to draw a closing line across the Gulf of Sidra because it would, simply put, violate the closure rules enunciated in article 7 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.66 Unfortunately for the Reagan administration's argument, Libya was not a party to that Convention and, unlike the Geneva Convention on the High Seas of 1958, the former Convention does not even purport that it is simply declaratory of customary international law on this subject. Moreover, article 7(6) of the Territorial Sea Convention expressly exempts "historic bays" and "historic waters" from its closure rules.
According to the U. S. interpretation of international law, the Libyan territorial sea would basically extend out seaward for twelve miles from around the coast along the rim of the Gulf of Sidra. Correlatively, the rest of the Gulf would constitute high seas in which the Sixth Fleet and its jet fighters would be able to traverse, maneuver, and engage in whatever types of provocative military operations it wanted. In this regard the best the Reagan administration could argue with respect to the obvious articles 2(3) and 2(4) violations was the customary international law doctrine of "use-it-or-lose-it." Even this argument would not include the right to launch military aircraft on hostile maneuvers in the general direction of Libyan oil fields so long as they allegedly do not approach to within twelve miles of the land.
Of course, the United States government itself would never put up with this type of provocative military behavior on the part of any other state. As mentioned before, America has established air defense identification zones (ADIZ) around the country whereby it unilaterally claims the right to regulate any aircraft that approaches to within a certain distance of its territory despite the fact that under the Chicago Convention U. S. airspace only extends to the column of air above its claimed territorial sea, which at the time was three miles. On December 28, 1988 President Reagan unilaterally extended the breadth of U. S. territorial waters from 3 to 12 miles. Moreover, it is clear that the United States government would never tolerate any foreign state, let alone a superpower, engaging in provocative naval maneuvers and potentially hostile air operations right in the middle of a large bay thoroughly enclosed on three sides by U. S. territory in close proximity to major strategic-economic facilities during a crisis situation or otherwise.
The Doctrine of Historic Bays/Waters
The way the United States government has traditionally prevented this from happening is to draw a closing line between the headlands of such bays on the basis of the customary international law doctrine known as "historic bays" or "historic waters."67 Under this doctrine, generally put, if the coastal state can prove that it has traditionally treated the bay as if it were an integral part of the land, then it would be entitled to draw a closing line across the mouth of the bay even if it exceeded whatever are the internationally recognized criteria for drawing such closing lines. Thus it could treat the bay as internal waters, that is, as if it were part of the land. Hence the historic bay would be completely subject to the coastal state's sovereign control and there would be no right of innocent passage across it for ships or aircraft from other states. Thus, for example, in the case of the United States coast, the territorial sea would have been measured three miles (later twelve miles) seaward of the closing line across the historic bay or historic waters.
The doctrine of historic bays/waters has been used by the United States government to enclose bodies of water that exceeded two times the breadth of America's claimed territorial sea on both its Atlantic and Pacific coasts.68 In addition, the existence of this doctrine as a matter of customary international law has also been expressly recognized by decision of the United States Supreme Court.69 It is also recognized in article 7(6) of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, to which the United States is a party though Libya is not.70 Nevertheless this latter fact is irrelevant because the doctrine of historic bays/waters is a well known principle of customary international
Law that Libya would have been entitled to rely upon in any event.71
I do not at this point wish to express a definitive opinion at all as to whether or not the Libyans were entitled to draw that closing line across of Gulf of Sidra. But I do wish to point out that they certainly had a plausible claim to draw that closing line under well recognized principles of international law that had been fully subscribed to by the United States government itself. This is a straight-out legal question that could have easily been resolved by the International Court of Justice or by an international arbitration tribunal.
For example, the World Court readily dealt with a similar problem in the Norwegian Fisheries Case. This litigation concerned the question of whether Norway was entitled to draw a straight base line system around the outside of the islands surrounding its indented coastline and treat the waters between the coast and the baselines as its internal waters under the doctrine of historic waters.73 The World Court held that under the circumstances there involved Norway was entitled to establish its straight base line system.
Thus, the disputed status of the Gulf of Sidra could have provided no legitimate excuse for the United States government to send the Sixth Fleet into the Gulf on hostile maneuvers in the general direction of Libya's main economic resources located in the oil fields. If the Reagan administration had been sincerely interested in settling the dispute over the legal status of the Gulf of Sidra in a peaceful manner, I suspect the Libyans might have been prepared to consider a proposal that both sides conclude a compromis specifically submitting the matter for resolution to the International Court of Justice, or to a mutually acceptable international arbitration tribunal.
Undoubtedly, Libya would have demanded that the scope of the compromis be broadened to include U. S. military actions against it from January through April of 1986. But if the Reagan administration truly believed that its policies toward Libya during those months genuinely comported with the requirements of international law (as it vigorously maintained in public) and that it had "conclusive" or "irrefutable" evidence of Qaddafi's sponsorship for international terrorism (the intelligence source for which had already been admittedly compromised), then it should have been happy to submit the entire outstanding conflicts between the United States and Libya over international terrorism and the status of the Gulf of Sidra to the International Court of Justice. But the chance of that happening was substantially less than the slight possibility that the Reagan administration would have actually obeyed the World Court's final decision on the merits in favor of Nicaragua that was rendered on June 27, 1986.74
Indeed, Libya publicly offered to submit the Reagan administration's allegations of its sponsorship for international terrorism to the International Court of Justice or to any other mutually acceptable international tribunal and to pay damages if a judgment were rendered against it.75 The only way to have tested the Libyans on these points would have been to make them a fair and reasonable offer. But in my opinion, the primary reason why the Reagan administration did not want to do this was to preserve the Gulf of Sidra and the cause of "international terrorism" as convenient pretexts over which it could easily provoke Qaddafi into a military conflict for the purpose of overthrowing him. The adamant refusal of the Reagan administration to pursue any means for the peaceful settlement of these disputes with Libya simply betrayed the fact that it never proceeded in good faith on such matters.
Planning for War
The validity of this latter proposition can be demonstrated by reference to the 1986 Gulf of Sidra incident, the planning for which can be traced to the summer of 1985. It has now been revealed that in July of that year a meeting of the National Security Council determined that another round of forceful military action was to be taken by the U. S. government for the purpose of overthrowing Colonel Qaddafi. Pursuant thereto, Admiral Poindexter, then the Deputy National Security Adviser and later the President's National Security Adviser, traveled to Egypt over Labor Day weekend in order to convince President Hosni Mubarak to invade Libya as part of a joint military action in conjunction with the United States.76
The Reagan theory was that since they had been unable to overthrow Qaddafi in a coup, the only way that he could be physically eliminated from power would be by an outright armed invasion. Since the number of U. S. military forces that could be brought to bear directly on the situation would not be sufficient to do the job, the U. S. government would have to rely upon the Egyptian army to do America's dirty work for it. Remember that former Egyptian President Anwar Sadat had invaded Libya once before in 1977 with the approval of the allegedly nonbelligerent Carter administration.77
World History
