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vant and significant only to our domestic politics or domestic lawthat if there is a fact of law, which I think there is in everybody's mind, then you already have these consequences.

Mr. KATZENBACH. No; I would disagree with that quite strongly, Senator. There is a great deal of doctrine in history and international law on this that a declaration of war is an essential to invoke those traditional rights, which I don't think you have today anyhow.

The CHAIRMAN. I don't wish to argue. I want to cite an authority on it, a very reputable authority. This is Briggs' "Law of Nations" which is one of the reputable authorities in this field, international law. He is at Cornell.

Mr. KATZENBACH. Yes; I used it as a casebook

The CHAIRMAN. Let me read you from page 975:

Borchard notes

"that it must be conceded that de facto war, with or without a full state of war, is one of the commonest of phenomena, and that it cannot be reconciled with a state of peace."

Then there are some citations I don't need but I will put it all in the record.

(The citations referred to follow :)

[From the Law of Nations, by Herbert W. Briggs, p. 975]

As Borchard writes, "Is it not a strange doctrine that would make the existence of war depend on recognition by anybody?" Borchard, "War and Peace," 27 id. (1933), 114-117. Where actual and continued hostilities are in progress, third States are certainly justified in acting as if war existed, but it is the existence of de facto war, not a recognition of it, nor a presumption that the parties intend a state of war, which justifies such an attitude on the part of the third States. A decision by third States to treat a de facto war as a state of war in the legal sense affects, of course, only the relations between third States and the parties engaged in hostilities. On at least two occasions third States have forced at least one of the parties in dispute to admit that a state of war existed. Cf. the British attitude towards France's "pacific blockade" of Formosa in 1884, 76 B.&F.S.P. (1884-1885), 423 ff., and the attitude of the United States towards the “pacific blockade" of Venezuela in 1902, U.S. For. Rel,, 1903, 420 ff., 452 ff. Courts of law have recognized the distinction between war in the material sense (de facto war) and war in the legal sense. Cf. The Three Friends, 166 U.S. 1 (1897). Borchard notes, loc. cit., 116, "that it must be conceded that de facto war, with or without a full state of war, is one of the commonest of phenomena, and that it cannot be reconciled with a state of peace." Cf. also Thos. Baty, "Abuse of Terms: 'Recognition': 'War,' 30 A.J.I.L. (1936), 377–399. Similarly, Brierly, loc. cit., 313, concludes that "if acts of force are sufficiently serious and long continued, then, even if both sides disclaim any animus belligerendi and refuse to admit that a state of war has arisen between them," a legal presumption is nevertheless justified that the state of facts for which they are responsible is war. The consequence is that third States, either singly or collectively, are justified in treating de facto war as a state of war in the full legal sense of the term. The attitude of third States can be expressed through a declaration of neutrality, or, in some cases, by a recognition of belligerency. Even in the absence of such declaration or recognition, however, the courts of third States would ordinarily be justified in regarding a state of war as existing.

If acts of force are sufficiently serious and long continued, then, even if both sides disclaim any animus belligerendi and refuse to admit that a state of war has arisen between them, a legal presumption is nevertheless justified that the state of facts for which they are responsible is war.

The consequence is that third States, either singly or collectively are justified in treating de facto war as a state of war in the full legal sense of the term. The attitude of third States can be expressed through a declaration of neutrality, or, in some cases, by recognition of belligerency. Even in the absence of such declaration or recognition, however, the courts of third States should ordinarily be justified in regarding a state of war as existing.

The CHAIRMAN. I am not trying to argue with you or to settle whether or not he is correct. I only want to make the point that there is, I think, some confusion maybe in our minds as between the significance of the declaration as regards international law and as regards domestic political considerations. It may trigger certain domestic law that would be involved.

IS WAR OUTMODED BECAUSE OF A POLICY OF INTERVENTION?

One thing that was developed particularly in your exchange with the Senator from New Jersey, which I thought was very interesting, is whether this idea of a declaration of war being outmoded arises out of a policy of intervention to keep the peace, which we seem to be following. Yet this policy has not yet been formalized or generally accepted by the Congress or the people. The thought occurred to me as you were having this exchange. At least this hearing is precipitated by this concern. Is it possibly because we have intervened in the Dominican Republic, we intervened covertly in a rather unusual way in the Bay of Pigs, and we intervened in a major way in Vietnam under the circumstances we have discussed? We had this very tentative and limited intervention in the Congo.

Does this grow out of this policy which was expressed last year before another committee by Secretary Rusk, to the effect-and this language isn't precise-that let no one be deceived by the fact we have no treaty commitments or any other kind of formal commitment with a country into thinking that they can engage in aggression without our response?

This would seem a very broad statement of policy which is now the policy of the Government but which hasn't yet been accepted by the Congress. Under such a policy of intervention, intervening anywhere, any time, wherever the circumstances in the mind of the President amount to aggression, why, then he has the constitutional right to do this. Is this a source of part of our confusion, do you believe?

Mr. KATZENBACH. I don't believe that those acts are. I thought the Congress had spoken rather strongly on aggression when the U.N. Charter was considered. I thought it was our policy to be opposed to aggression wherever it occurs in the world. And I thought that was a policy that both Houses of Congress had expressed themselves on. I don't find that very surprising or shocking.

UNITED STATES AS KEEPER OF THE PEACE

The CHAIRMAN. You anticipate really what I was leading up to. If this is our policy, doesn't this mean that we have without any formalizing of the idea substituted ourself as the carrying out of the policy of the United Nations, where this matter of intervention and keeping of the peace rests since the adoption of the United Nations, which, is it true, is relying upon collective security and not that of a single country? We are feeling, I suppose, the inability of the U.N. to work very well and have, without formality, ourselves become the policemen and the keeper of the peace. Does that at all make any sense? Now would you comment?

Mr. KATZENBACH. Well, it isn't the policy of the Government, Mr. Chairman. The obligations to oppose aggression, to be opposed to ag

gression, are ones on which the Congress has spoken. I think that that is the policy of the United States. But to convert that instantly into saying, therefore, the United States unilaterally will come to the aid of anybody where there is aggression is to undertake commitments which the United States has never made.

Mr. Rusk stated the negative side of that coin. He said, don't be misled in effect, to potential enemies of the United States. He said don't be misled by thinking the areas in which we have treaties are the only areas in which we are interested. He didn't say what the United States would do in those circumstances. And indeed, where you have a situation like Hungary the United States could do nothing without involving much greater risks. But what he was saying is, as I read the statement and I am sure it was his intention, nobody has a hunting license outside of these areas, just because there is no treaty involved. The United States is opposed to aggression and we will do what we can and what we see fit in collaboration with others through political measures, through whatever measures come to be appropriate in all the facts and circumstances of that situation.

I don't think that you would wish, Mr. Chairman, the United States to take a position which says aggression is all right in some parts of the world but wrong in others. I think it is wrong everywhere.

WHEN DOES AGGRESSION EXIST?)

The CHAIRMAN. Mr. Secretary, the other day with Mr. Bartlett we raised this very question about the use of the word "aggression," which has become almost a ritual word in practically every_public statement of the Secretary and others. He pointed out that the League of Nations undertook to define aggression, and they spent, I don't know, a year or two and gave it up as a bad job. He said it is almost an undefinable word, a word which should be avoided as being so utterly lacking in any precision at all. I think his words were that it is a word that should be avoided because it is not precise.

What this in effect amounts to, I believe, is that any time in the mind of the President, aggression exists, then we are committed. I wondered if this is the policy. Aggression is a very difficult thing to define. In practically every controversy each side sincerely believes the other side is the aggressor, don't they?

Mr. KATZENBACH. No, sir.

The CHAIRMAN. As in the Middle East.

Mr. KATZENBACH. This happens in some instances, that is quite true. It happens in others. But to say that a word, because you find difficulty in finding a definition that covers every conceivable contingency, is absolutely no good as a word is to abandon the use of a considerable part of the English language.

No, every lawyer who has ever taken a case into court knows that there are factual situations where people can agree upon this, and there are factual situations in which people disagree upon this. There are large areas of gray anywhere, in any law that this Congress passes anywhere. There are ambiguities and difficulties in its application to specific factual situations. So simply because I can't come up with a definition of aggression that satisfies every situation is not to say that we could not come up with any number of factual situations where

there would be 100 percent agreement that given those facts this was aggression.

NATURE OF ACTION IN DOMINICAN REPUBLIC, CONGO, AND CUBA

The CHAIRMAN. Let's take a recent case, and for a moment leave aside Vietnam. Take the Dominican Republic. Under what authority was the intervention there? Was it under this broad policy of meeting aggression?

Mr. KATZENBACH. No, sir. I think that is not true in the case of the Dominican Republic.

The CHAIRMAN. What was it?

Mr. KATZENBACH. The President stated at the initial time the troops were sent that it was for the purpose of protecting Americans and other foreigners who in the circumstances of that disorder were in danger where the government could not give protection.

The CHAIRMAN. I know what he said. Is that still your position? Mr. KATZENBACH. Yes, sir, and beyond that, as they got in there the OAS was meeting on the situation, and American troops remained in there while the OAS was meeting on the situation. The OAS then converted that force into an international force, and it remained there as such. There were elections which I regard as free elections. I think they were freer elections than are normally possible in those circumstances, and American troops were withdrawn. There was some evidence at that time and some thought that there might be aggression with respect to the Dominican Republic emanating from Cuba. There were some possibilities of that.

The CHAIRMAN. In the Congo was that aggression?

NATURE OF U.S. RESPONSE

Mr. KATZENBACH. Oh, no sir. Certainly there was no aggression in the Congo nor was there any engagement in anything even remotely close to a military engagement. In that situation the Government of the Congo was faced by a domestic law situation where a group of foreign mercenaries, acting presumably for no one, simply went around shooting up people and looting. The Government of the Congo wanted to use its own armed forces to put them down. It needed, and it got, some assistance in this from some other African countries, but they had some logistics problems.

The United States responded and said we will assist you in terms of transportation of some personnel well away from any area of combat. There was also transportation of some fuel for some Ethiopian fighter planes, that the Ethiopians provided to help in a difficult revolutionary situation. There was no thought of, and no commitment to, anything else. There was no prior commitment on this.

The CHAIRMAN. It wasn't aggression. I was just making the point. You said we all agree about preventing aggression. This was not a case of aggression.

Mr. KATZENBACH. No, there was no aggression there.

The CHAIRMAN. This is the case of a rebellion.

Mr. KATZENBACH. There may be some facts I don't know.

The CHAIRMAN. You refer to foreign mercenaries. These foreign mercenaries were employed as part of the armed forces of the Congo, were they not?

Mr. KATZENBACH. Some of them were, yes, sir. They had been in the past. The CHAIRMAN. That is what I mean.

Mr. KATZENBACH. In this instance they revolted there.

The CHAIRMAN. It was an internal rebellion among the armed forces, is that correct?

Mr. KATZENBACH. That is right.

The CHAIRMAN. Now in the Bay of Pigs, what was this? Was this aggression?

Senator COOPER. Will the Chairman yield at that point?

The CHAIRMAN. Yes.

Senator COOPER. May I ask was our intervention in the Congo-did it derive from some U.N. resolution?

Mr. KATZENBACH. NO.

Senator CooPER. It did not.

Mr. KATZENBACH. No; I don't believe so. It was simply an act of assistance to a friendly government that was having difficulties of this nature.

The CHAIRMAN. What about the Bay of Pigs. Was that in response to a policy of opposing aggression?

Mr. KATZENBACH. No.

The CHAIRMAN. What was it?

Mr. KATZENBACH. It was a very unfortunate act, a mistake, and I cannot add to what President Kennedy said on that subject, and I thought he rather clearly said that and admitted it.

IS THERE A POLICY OF UNILATERAL INTERVENTION?

The CHAIRMAN. There is one other point along this line. It seems to me that there is some validity to the idea that we have in some way undertaken a responsibility to intervene unilaterally to keep the peace in the world or to oppose aggression. In some cases the aggression aspect is clearer than in others.

Recently the matter came up before the Committee on Armed Services about the disposition of logistics ships, and I very much approve of what the chairman of that committee and the committee did. Senator Russell, I think, primarily took a very strong position against the provision of some 30-odd logistics ships I believe is what they call them. They are major ships for the maintaining of heavy equipment in about 30 different places around the world. It seems to me this is a clear negation of this policy of being the policeman of the world. Wouldn't you agree to that?

Do you remember the case I am talking about?

Mr. KATZENBACH. I don't recall the case you are talking about, Mr. Chairman.

The CHAIRMAN. It happened about two months ago.

Mr. KATZENBACH. I don't think we have a policy of being the policeman of the world. I do think we have a responsibility which simply comes from the position of the United States in the world today. I don't think any act of Congress or any act of the President can avoid that responsibility.

The CHAIRMAN. The only reason I am trying to develop this is to see if I can throw any further light on your view that the declaration of war is outmoded-again, correct me if I don't use the right word

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