3 DPLDIL 30 JLR

3 DePaul Dig. Int'l L. 30

(Publication page references are not available for this document.)

DePaul Digest of International Law

Spring, 1997

SPC. MICHAEL NEW v. WILLIAM PERRY, SECRETARY OF DEFENSE: THE

CONSTITUTIONALITY OF U.S. FORCES SERVING UNDER U.N. COMMAND

Robert S. Winner

"I do solemnly swear that I will support and defend the Constitution of the

United States against all enemies, foreign and domestic; that I will bear true

faith and allegiance to the same and that I will obey the orders of the

President of the United States and the orders of the officers appointed over me,

according to regulations and the Uniform Code of Military Justice. So help me

God."

I. Introduction

For the past several years, the United Nations (U.N.) has increasingly played

a role in world affairs and maintaining international peace and security. Its

operations included missions to Haiti, Somalia and recently Bosnia-

Herzegovenia. Such a rise in activity results in greater responsibility for the

U.N. and less sovereignty for the participating nations, including the United

States. For example, the United States may not always control and command all

operations its forces are participating in. This relinquishment of control was

unsatisfactory to one U.S. soldier. On January 24, 1996, Spc. Michael New, a 22

year-old Army medic from Texas, was convicted in Wuerzburg, Germany by a court-

martial jury and issued a bad conduct discharge for refusing an order to wear

the United Nations uniform and insignia for a mission to Macedonia. [FN1] Spc.

New claims that the order was illegal as well as unconstitutional.

It is the contention of this paper is that a legitimate argument can be made

for Spc. New's position. Part II will first detail Spc. New's situation and the

arguments made in support of his position. Part III, will critically analyze

the legitimacy of the arguments. Part IV, will discuss the impact on U.S.

troops and U.S. involvement in U.N. operations. Part V, will suggest some

solutions to solve the confusion surrounding these issues.

II. Background

On July 2, 1995, Spc. New was deployed to Schweinfurt, Germany as a Medical

Specialist assigned to Headquarters and Headquarters Company, 1st Brigade, 3d

Infantry Division, APO Army Europe 09226. On August 21, 1995, Spc. New was told

that his Division would travel in October to Macedonia as part of a United

Nations Peacekeeping Force. He was also advised that as part of the U.N.

deployment, he would be required to wear a U.N. badge, patch, headgear, and

other U.N. insignia. He would also be required to serve under U.N. commanders,

who were not United States military officers, like Finnish Brig. General Juha

Engstrom. Spc. New informed his superiors that he could not comply with the

order to wear the U.N. uniform because it violated the oath he took when he

enlisted in the Army. Subsequent to his refusal, Spc. New submitted a formal

written statement claiming that the orders violated the oath of office, violated

the enlistment contract and were illegal under the U.S. Constitution. Col.

Stephen R. Layfield and Capt. Roger H. Palmateer repeated the given orders, but

Spc. New still refused to comply. On October 17, 1995, Spc. New was charged

with violation of Article 92 of the Uniform Code of Military Justice, which

stated that Spc. New, having knowledge of a lawful order, failed to obey this

order. On January 24, 1996, after 20 minutes of deliberation, the court-martial

jury convicted Sp. New and gave him a bad conduct discharge. [FN2]

Michael New and his attorneys have based his refusal to comply with orders on

several legal grounds: (1) The oral order to wear the United Nations uniform was

illegal; (2) The order to deploy to Macedonia without the specific approval of

Congress was illegal; (3) The order to wear the U.N. uniform violated New's

enlistment contract; and (4) The orders in question violated New's Thirteenth

Amendment rights to be free from involuntary servitude. [FN3]

The argument that the oral order to wear the United Nations uniform was

illegal was based on the premise that: it violated (a) Article I, Section 9 of

the United States Constitution which states in pertinent part, "No Title of

Nobility shall be granted by the United States; and no Person holding any Office

of Profit or Trust under them, shall without the Consent of the Congress, accept

of any present, Emolument, Office, or Title, of any kind whatever, from any

King, Prince, or foreign State." (emphasis added); (b) 5 U.S.C. Section 7342

which prohibits all federal employees from accepting any gift or decoration from

any foreign government, including military personnel; (c) 32 C.F.R. Section

578.19, which specifically bans the acceptance of foreign service medals unless

"specifically authorized," meaning with congressional approval only; and (d)

Army Regulation 670-1 which states that express approval of Congress is required

to wear any insignia of a foreign government, for which the United Nations falls

under the definition of a foreign government.

New's argument that the order to deploy to Macedonia without Congressional

approval was illegal also has several legal bases. The deployment order

violated (a) 22 U.S.C. Section 287 (d) or (d-1) which is known as the United

Nations Participation Act of 1945, as amended in 1949, which authorizes the

President "to negotiate a special agreement with the Security Council," provided

that the agreement is submitted to Congress by "Appropriate Act or Joint

Resolution"; (b) Article I, Section 8, Clauses 12, 13, 14, and 18 of the U.S.

Constitution which dictates the powers of the President of the United States;

the President's constitutional duty as Commander- in-Chief and appointment

powers of the President.

New's third argument, that the order was a breach of New's enlistment

contract, was based simply on the premise that Spc. New agreed to perform all

the duties of the office of a member of the United States Army, not all the

duties of the office of a member of Task Force Able Sentry determined by the

United Nations Security Council. New finally argued that the order violated

New's Thirteenth Amendment rights to be free from involuntary servitude. This

contention is based on: (a) the Information Paper of the Office of the Chief of

Legislative Liaison, Department of the Army, which states that "no U.S. Soldier

ordered to deploy as part of Task Force Able Sentry will be required to execute

any oath of allegiance to the U.N.;" (b) the protections and rights of U.N.

soldiers are woefully inadequate compared to those of U.S. soldiers; and (c) the

denial of New's natural rights as a U.S. citizen.

The White House based its decision to deploy troops to Macedonia on the

Presidential Decision Directive, Number 25 (PDD-25). [FN4] In executing PDD-

25, the President sought to reform the relationship between the United States

and the United Nations with regard to U.S. troops. Although the Directive

addressed six major issues, one specific clause defining the United States'

policy regarding the command and control of American military forces in UN peace

operations gives rise to the bases offered by the President. As Commander-in-

Chief, without ever relinquishing command of U.S. forces, the President has the

authority to place U.S. forces under operational control of a foreign commander

when doing so serves American security interests. [FN5] (emphasis added).

However, any large scale operations of U.S. forces in a major peace enforcement

mission that is likely to involve combat should ordinarily be conducted under

U.S. command and operational control or through competent regional organizations

such as NATO or ad hoc coalitions. [FN6] Before addressing this contention, it

is important to quickly dispense with some of the weaker claims.

III. Analysis

A. The Order to Wear the Uniform

The claim that the order to wear the United Nations Uniform was illegal fails

on all bases. The questions presented by Article I, section 9 are whether a

U.S. officer has accepted any office or title from the United Nations and

whether the United Nations is considered a foreign state. [FN7] Not only had

Michael New not accepted a title or office from the United Nations, but the

United Nations does not qualify as a state under the U.N. Charter. The United

Nations also does not meet the four requirements of being a "state" which are:

(1) a viable government; (2) territorial boundaries; (3) the ability to enter

into international treaties and (4) permanent population. [FN8] Thus, Article

I, section 9 may not even apply.

The order also does not violate 5 U.S.C. s 7342 which prohibits all federal

employees from accepting any gift from any foreign government in time of combat

operations without Congressional approval. [FN9] For the purposes of this

section, an "employee" means a member of a uniformed service; [FN10] a "foreign

government" is any international or multinational organization whose membership

is composed of any unit of foreign government; [FN11] and a "gift" may include a

"decoration," which may mean an order, device, medal, badge, insignia, emblem,

or award tendered by, or received from a foreign government. [FN12] On its

face, this claim fails because the United Nations is not a "foreign government"

within the meaning of the section. The United Nations is comprised of foreign

governments and does not make up a single foreign government. Clearly, the

intention behind this section was to prevent a foreign state from controlling

any military personnel of the United States, or from forcing them to fight. In

addition, this section addresses the procedure by which a soldier accepts a

gift, in the popular sense of the word, and does apply to a temporary wearing of

insignias such as in the case at hand.

The order also does not violate 32 C.F.R. s 578.19(g) which, according to New,

specifically bans the acceptance of foreign service medals unless "specifically

authorized." The section refers to "foreign service medals," an insignia by

definition is not a foreign service medal. In addition, Congressional approval

is waived in the case of "United Nations Service Medal," if New believes the

insignia and uniform is a "foreign service medal" at all. Congressional

approval is only needed in cases where the soldier has received an "award" upon

discharge or permanent retirement. [FN13] Michael New has neither been

discharged nor retired. Thus, this section does not aid in New's argument.

The third reason the oral order to wear the U.N. uniform is illegal is

grounded in Army Regulation 670-1, which essentially states that the only

uniforms, accessories, and insignia prescribed in this regulation or as approved

by Headquarters, Department of the Army (HDQA) will be worn by personnel in the

U.S. Army (emphasis added). Spc. New has already proven why the claim based on

this regulation is unfounded. If the uniform is approved by Headquarters, which

is controlled by the President of the United States as Commander-in-Chief, then

no violation arises. The President implicitly approved such a uniform by

sending troops to Macedonia to fight under the U.N. This satisfies AR-670-1.

B. The Breach of the Enlistment Contract

The contention that the order violates Spc. New's enlistment contract by

detailing him to a U.N. force rested on the oath he took to defend the

Constitution of the United States against enemies foreign and domestic and to

obey the orders of the President and other military officers (emphasis added).

Under the order, Spc. New would no longer be a U.S. soldier but a U.N. soldier.

His new commanders, however, have not taken an oath to uphold the Constitution.

The argument that Spc. New would no longer be upholding his oath nevertheless

failed on several fronts. First, and most obvious was that since this was an

order from the President of the United States, his enlistment contract is not

broken. The oath does not say "obey the orders of the President if the soldier

finds them acceptable." This is an unconditional oath to obey the orders of his

Commander-in-Chief. A more subtle approach to this contention is this: by

supporting such U.N. operations as a U.N. soldier, he was defending the

Constitution of the United States because if fighting did not cease, it may

spread. Countries today are no longer as isolated as they once were. Fighting

that begins in one country may easily escalate into a regional battle. If the

U.S. is to defend itself, its interests are protected when its troops aid in

missions in other parts of the world despite being under foreign "command."

Thus, in effect, a U.S. soldier fighting as a U.N. soldier does defend the

Constitution against enemies.

C. The Violation of Thirteenth Amendment Rights

Spc. New claims that the order also violated his Thirteenth Amendment rights

because he was forced into involuntary servitude. This contention was

predicated on three premises: (1) the transfer of allegiance a U.S. soldier must

make to the United Nations, reasoning that when "operational control" was given

to a foreign officer, it constituted a de facto transfer of loyalty from the

U.S. to the U.N; [FN14] (2) the inadequate protection under international law a

U.N. soldier possesses compared to a U.S. soldier, arguing that because on a

peacekeeping mission, a U.S. soldier loses the possible status of "Prisoner of

War" [FN15] (3) the denial of a U.S. soldier's natural rights, claiming that the

U.S soldier under the U.N. command is in a "legal no-man's land," and would not

be recognized as a legal "person". [FN16] The Information Paper issued by the

Office of the Chief of Legislative Liaison specifically asserts that "no U.S.

soldier ordered to deploy as part of the Task Force Able Sentry, as Spc. New

was, would be required to execute any oath of allegiance to the U.N. [FN17]

This statement was consistent with the PDD-25 which assures the country that at

no time will the United States ever completely relinquish control of its troops

to foreign commanders. [FN18]

The distrust based of the Information Paper was misplaced. Although

statements issued by high offices have no binding authority, they should be

treated without suspicion. In addition, Geneva Convention Relative to the

Treatment of Prisoners of War's full protections, including its grave breach

provisions, are available to combatants held captive during international armed

conflicts. [FN19] Liberally construed, this applies to any mission in which

troops possess arms. Thus, U.N. soldiers are afforded similar protection to

U.S. soldiers in the Macedonia deployment. Finally, the argument that U.S.

soldiers lose their natural rights when forced to serve under U.N. command was

without legal basis. This argument appears to be an attempt on the part of Spc.

New to arouse emotions against the United Nations in general, rather than a

rational argument capable of being analyzed.

D. The Deployment to Macedonia

The contention that the deployment to Macedonia without the specific approval

of Congress was illegal deserves the most consideration because it holds the

most merit. Spc. New's argument must be broken down into several parts in order

to understand its value. First, New claimed that the deployment is governed by

the United Nations Charter rather than U.S. domestic law. Second, New argued

that the deployment was controlled by Chapter VII rather than Chapter VI of the

U.N. Charter. Third, that the deployment is governed by Article 42 of Chapter

VII. Fourth, New argued that the deployment, because it must be in accordance

with the Members' "constitutional processes," requires Congressional approval as

dictated by the Constitution, Art. I, s 8, Clauses 12, 13, 14, and 18, as well

as by the United Nations Participation Act of 1945. [FN20]

1. U.N. Charter v. Domestic Law

There is little question as to whether the United Nations Charter governs such

actions. The Charter was executed and ratified by member states for the very

purpose of maintaining international peace and security. This is accomplished

by various mechanisms of the Charter. One such mechanism is the Security

Council's ability to call on member states to supply forces and carry out its

objectives. [FN21] Such measures were intended to coordinate international

activity and bring peace to an area. Thus, the Charter applies.

1. Chapter VI v. Chapter VII

Assuming that the U.N. Charter governs such agreements, the second step in the

analysis is to look at Chapter VI and Chapter VII of the U.N. Charter. Chapter

VI is titled "Pacific Settlement of Disputes." It is comprised of several

articles for the contending countries to resolve disputes that might endanger

international peace and security. [FN22] Any state, despite not be being a U.N.

member or a party to the dispute, may bring the matter to the attention of the

Security Council or General Assembly [FN23] The Security Council also has the

independent power to investigate disputes which might breach international

security. [FN24] Once the Security Council has engaged itself in the process,

the Council has several options: (1) call upon the parties to settle their

dispute by the means listed in Article 33(1); [FN25] (2) "recommend appropriate

procedures or methods of adjustment" in resolving the dispute; [FN26] (3) "make

recommendations to the parties with a view to pacific settlement of the matter";

[FN27] or (4) request an advisory opinion by the International Court of Justice

("ICJ") if international peace may continue to be disrupted. [FN28] Lastly, but

most importantly, the Council "may take action... as it may consider

appropriate." [FN29]

Chapter VII, entitled "Action With Respect to Threats to the Peace, Breaches

of the Peace, and Acts of Agression," contains several of the same provisions as

Chapter VI. However, Article 39 of the Charter gives the Council the authority

to deal with threats to the peace, breaches of the peace, and acts of

aggression. [FN30] Article 41 of the Charter provides the Council with the

authority to decide on nonforce measures, but most importantly the Council may

call upon U.N. Members to assist in such actions. [FN31] Article 42 of Chapter

VII expands the Council's power authorizing it to invoke the use of force if the

measures under Article 41 are "inadequate." [FN32] Under Article 43, Members

have pledged forces, assistance, and facilities, subject to special agreements

between the Council and the Members "in accordance with their respective

constitutional processes." [FN33] (emphasis added).

It is self evident that any time forces are called upon in any capacity by the

Security Council, Chapter VII applies. Nowhere in Chapter VI is the Council

allowed to call upon its Members to provide forces. The terminology used in

both Chapters indicates the same conclusion. Article 33 of Chapter VI discusses

negotiations and mediation while Article 39 of Chapter VII specifically

addresses acts of aggression. PDD-25 [FN34] has categorized the Macedonia

deployment as Chapter VI deployment while Bosnia and Somalia are Chapter VII

deployments. [FN35] The Decision has confused the last portion of Chapter VI

which talks about appropriate action with that of military action as authorized

under Chapter VII. This argument nevertheless holds no merit based on the plain

meaning and language of the Charter. [FN36]

3. The Commander-in-Chief Clause and Article 43 Agreements

An issue not raised by Spc. New, which has tremendous relevance to this issue,

is whether it is constitutional to enter into an Article 43 agreement at all.

The question posed has been, "How can the President remain as Commander- in-

Chief if (s)he no longer commands the U.S. troops?" The second question which

stems from the previous inquiry, which has been asked by Spc. New, is if it is

constitutional to enter into an Article 43 agreement, can the President enter

into it without Congressional approval? President Clinton has attempted to

answer both of these questions by issuing the PDD 25 in which he explained how

such an agreement could be entered into without violating the Constitution.

a. The President's Position

The President's policy is as follows:

The President retains and will never relinquish command authority over U.S.

forces. On a case by case basis, the President will consider placing

appropriate U.S. forces under the operational control of a competent U.N.

commander for specific U.N. operations authorized by the Security Council. The

greater the U.S. military role, the less likely it will be that the U.S. will

agree to have a U.N. commander exercise overall operational control over U.S.

forces. Any large scale participation of U.S. forces in a major peace

enforcement mission that is likely to involve combat should ordinarily be

conducted under U.S. command and operational control or through competent

regional organizations such as NATO or ad hoc coalitions. [FN37] (emphasis

added).

The Decision cites several reasons for this policy towards U.N. forces. First,

the United Nations during the Cold War could not be as effective as it wanted to

be because the Soviet Union, as a permanent member of the Security Council,

could veto any action. Now that the Cold War is over, the common interests are

best served by multilateral action. [FN38] Second, the need for centralized

operations is paramount if efforts are going to be maximized. [FN39] Third, the

United States has, in the past, turned over its troops to U.N. commanders and

this would not relinquish any more control to U.N. commanders than has already

been given. [FN40]

The Decision makes the distinction between "command" and "operational

control." It defines "command" as "constituting authority to issue orders

covering every aspect of military operations and administration" [FN41] while

"operational control" is defined as a "subset of command" giving authority to

"assign tasks to U.S. forces already deployed by the President, and assign tasks

to U.S. units led by U.S. officers" within a specific time frame or mission.

[FN42] At no time however, would the President relinquish complete control of

U.S. forces to U.N. commanders and the "U.S. reserves the right to terminate

participation at any time and to take whatever actions it deems necessary to

protect U.S. forces if they are endangered." [FN43] (emphasis added). In

support of the President's interpretation of the Commander-in-Chief clause,

Clinton employs historical precedents of "operational control" by foreign

commanders. [FN44] PDD-25 also cites Operation: Desert Storm and the Korean War

as examples of "operational control," where U.S. forces have served under

control of foreign command.

b. The Real Commander-in-Chief Clause

When the framers included the Commander-in-Chief clause, it not only gave the

President traditional powers that are commonly relegated, they vested control

over the military in order to ensure consistency in the command of the armed

forces. [FN45] While Congress received the power to make the political decision

of whether to commit the nation to war, the President received the authority "to

command the troops in day-to-day operations." [FN46] Despite the framers' fears

that the President might use the armed forces to impose dictatorial rule, [FN47]

the armed forces were ultimately answerable to the President even if his

subordinates ordered most of the commands.

One scholar has noted that, as a result of this power, it can be concluded

that the clause also binds him by making him the person ultimately responsible

for the exercise of that power and the consequences that flow therefrom. "In

other words, the Commander-in-Chief serves not only as the source of

Presidential authority, but also serves as a constraint on the President. PDD-

25 implicitly acknowledges the constraining effect of the Commander-in-Chief

clause by its declarations that the President has always commanded and never

will relinquish command over the armed forces." [FN48] Furthermore, the

President has reserved the right to terminate participation in the peace

operation. This termination clause operates as a defense mechanism if U.N.

commanders do not use U.S. troops in a way authorized by the President. It also

supports the conclusion that the President is attempting to remain as Commander-

in-Chief at all times.

Thus, the restrictions on command and control of U.S. forces outlined in PDD-

25 illustrate not only that it would contravene U.S. policy for the U.S. to

comply with an Article 43 agreement, but that it may be unconstitutional. PDD-

25 emphasizes that the President must always retain "command" over U.S. troops.

The collective security system envisioned by Article 43 [FN49] and Article 47

[FN50] would require the President to cede command over forces pledged under an

Article 43 agreement to the Security Council. Under an Article 43 agreement,

the Military Staff Committee (MSC), along with the Council, would be deeply

involved in the strategic decisions. [FN51] Thus, such a hierarchy could

violate the Commander-in-Chief clause of the U.S. Constitution. In addition,

the President may not be able to recall troops under an Article 43 member could

prevent withdrawal of U.S. troops [FN52] Although the United States, being a

permanent member of the Security Council, could prevent any Council action

before it occurs, once the Council received the troops, the U.S. would be in

violation of an Article 43 agreement if it subsequently decided to terminate

U.S. participation in the operation.

In addition, a closer look at the historical precedent offered in PDD-25

reveals a different scenario. An examination of the proffered instances of

foreign control over U.S. forces uncovers that they fall into two distinct

categories: "actual command by foreign generals in emergency situations" in

which the President is not a member of the decision making process, and "minimal

foreign control," keeping U.S. hierarchy intact." [FN53] U.S. troops served

under foreign generals and foreign command in both World War I and II. Because

the United States was ill-equipped to deploy troops in Europe, forces fought

under the command of the Allies in Europe. U.S. troops were subsequently

integrated into British and French armies fighting several major battles under

their control. In World War II, U.S. and Britain agreed to conduct "coalition

operations," until 1944, when Eisenhower assumed command of all allied forces in

Europe. [FN54] These two examples can be pigeonholed under "actual command by

foreign generals in emergency situations." The chain of command did not remain

intact, contrary to guarantees made in PDD-25, but these occasions of foreign

command may be distinguished from the situations that PDD-25 cites because of

the nature of the battle. In addition, the U.N. Charter did not exist, nor was

the United Nations Participation Act in effect, that now limits the President's

ability to allow troops to fight under foreign command.

During Operation Desert Storm, U.S. forces undoubtedly remained under the

control of President Bush and U.S. Central Command (CENTCOM), while Islamic

forces operated under Saudi Arabian command. [FN55] Although, technically,

other forces were involved and support of the U.N. was sought, it was a U.S.

initiated operation with the clear intent of quashing Iraq with or without

anyone's assistance. President Bush used the United Nations as a vehicle to

gain American support for the operation. [FN56] However, at no time were U.S.

troops in jeopardy of falling under command control or even operational control

of the U.N. With regard to the Korean War, General MacArthur was appointed

commander of all United Nations forces in Korea and the essential U.S. command

structure remained virtually untouched. Thus, neither situation remotely

resembles the current Macedonian operation as the President believes it did.

c. "Operational Control" v. "Command Control"

If, however, the President is not violating the Commander-in-Chief clause, how

does one decide what the difference is between "operational control" and

"command control?" Perhaps the distinction lies in the definitions of

"peacekeeping" operations, "peace enforcement" and "preventive deployment"

operations. The definition of "peacekeeping" seems to be a "distinctive

innovation" by the United Nations which was "discovered like penicillin." [FN57]

Kirgis believes that these peacekeeping operations "fall short of the provisions

of Chapter VII....but go beyond purely diplomatic means or those described in

Chapter VI of the Charter." [FN58] "Peacekeeping operations" have come to be

defined as:

an operation involving military personnel, but without enforcement powers

undertaken by the United States to help maintain or restore international peace

and security in areas of conflict. These operations are voluntary and are based

on consent and cooperation. While they involve military personnel, they achieve

their objectives not by force of arms thus contrasting them with the enforcement

action...under Article 42. [FN59] (emphasis added).

The National Defense Authorization Acts for Fiscal Years 1993 [FN60] and 1994

[FN61] have provided some guidance as to what would be considered a

"peacekeeping" operation:

(1) International peacekeeping activities take many forms and include

observer missions, cease-fire monitoring, human rights monitoring, refugee and

humanitarian assistance, monitoring and conducting elections, monitoring of

police in the demobilization of former combatants, and reforming judicial and

other civil and administrative systems of government.

(2) International peacekeeping activities traditionally involve the presence

of military troops, police forces, and, in recent years, civilian experts in

transportation, logistics, medicine, electoral systems, human rights, land

tenure, other economic and social issues, and other areas of expertise. [FN62]

There are several essential characteristics if peacekeeping operations are to

succeed. First, peacekeeping operations are set up only with the consent of the

parties to the conflict in question. Second, no operation can be established

without a broad consensus within the international community that it is the

correct action. Third, the military personnel who serve in peacekeeping

operations are provided by Member States on a voluntary basis. [FN63]

Peacekeeping operations have usually been executed only after hostilities have

already broken out but after some agreement has been reached. It is used as a

temporary measure so that "peacemakers" [FN64] may come in and negotiate. The

peacekeeping forces serve as a buffer, remaining neutral throughout the process.

[FN65] The former Yugoslavian situation may be characterized as a

"peacekeeping" mission for U.S. troops because they did not participate until

there was a cease-fire.

"Peace enforcement" by the United Nations is a new phenomenon which is still

developing. Since no operations to date have been clearly characterized as

"peace enforcement," it becomes difficult to articulate what is actually "peace

enforcement." To the extent that it may be defined, several characteristics are

present in peace enforcements which are not present in peacekeeping operations.

First, there has been no consent of the parties involved in the breach of

security; second, there has been no agreement to stop fighting; third, the

forces involved anticipate combat. The situation in Somalia (ONUC) may be

considered the first "peace enforcement" operation. [FN66] In 1991, heavy

fighting broke out in Somalia's capital city of Mogadishu between supporters of

Interim President Ali Mahdi Mohamed and supporters of General Mohammed Farah

Aidid, Commander of the United Somali Congress (USC). [FN67] The internal war

created wide spread death and destruction of the country, forcing thousands of

civilians to evacuate. After negotiations failed, the Security Council

authorized 28,000 troops into Somalia, called UNOSOM II, to stop the fighting

and use force if necessary. Nevertheless, the United States retained command of

the United States forces but delegated certain attributes of the command to the

United Nations. [FN68]

A third category of operation called "preventive deployments," has filled in

the cracks left open by the definitions of "peacekeeping" and "peace

enforcement." A "preventive deployment" is an operation in which the troops are

deployed before any fighting begins. The troops are there to either prevent the

spread of fighting from areas close to the region or prevent fighting in the

region where they are actually deployed. It, therefore, could be considered a

subset of a "peacekeeping" mission because it is still maintaining peace

irrespective of any prior fighting. The mission at issue here, Macedonia, has

been characterized as a "preventive deployment" mission, the first one of its

kind. UNPREDEP's [FN69] objectives are to monitor the border between Macedonia

and Albania and to prevent the ethnic wars in the former Yugoslavia from

spreading. There are currently 1,100 U.N. troops deployed, 540 of which are

Americans, to patrol the border. The number of troops was recently increased

from 1,050 to 1,100 in order to "make possible 'timely actions' to prevent the

destabilization of the country." [FN70] The increase in forces was in response

to the latest developments in Knin Krajina, where a large number of refugees

from these regions are going to Serbia. [FN71] Although their mission is to

prevent the war from spreading, it is on their doorstep already. One commander

said that "there is a Serbian sniper position about 400 meters from our

position. They brought six Serbian soldiers in, dug a fighting position,

camouflaged it and the sniper came there. They usually come out once a week.

They watch us and we watch them." [FN72] The media has analogized the situation

as a "powder keg," meaning at any spark, the whole region will explode into war.

[FN73]

In analyzing the various missions, one main conclusion can be reached: all the

troops must be ready to fight no matter how the mission is categorized.

Although the mission's objectives are different, the troops must be armed for

any situation. An under-armed troop is arguably a dead troop. As a result, the

distinctions between the definitions are inconsequential according to the plain

meaning and intent of the relevant articles of U.N. Charter, which both Congress

and the President seem to have misinterpreted. A critical reading is essential.

Article 41 reads: "The Security Council may decide what measures not involving

the use of armed force..." [FN74] (emphasis added). Therefore, Article 41

cannot authorize any use of armed force. Conversely, Article 42 reads: "[If]

Article 41 [measures ] would be inadequate or have proved inadequate, [the

Security Council] may take such action....as may be necessary to maintain or

restore international peace and security...." [FN75] (emphasis added). Article

42 speaks in the alternative: the Council may determine that Article 41 need not

be employed first before determining their inadequacy. As a result, Article 42

measures may be initiated before any Article 41 action. More importantly,

Article 42 actions include both "peacekeeping" and "peace enforcement."

It could be argued then that the word "maintain" is synonymous with

"peacekeeping" and "restore" is synonymous with "peace enforcement." Thus, both

types of missions seem authorized under Article 42. In addition, it can be

argued that "preventive deployment" is also authorized by Article 42 because if

more force is authorized as in a restoration of peace, less force is certainly

authorized as in a preventive deployment. Although this may be a novel argument

and contrary to how many scholars have treated peacekeeping missions, it is not

illogical. If any authority under the Charter can be found for these types of

missions, it can be squeezed from Article 42. I choose to find some authority

for such operations, rather than settling for an unconvincing and somewhat

bizarre explanation that "peacekeeping operations" might be "put in a new

Chapter [entitled] 'Six and a Half,"' as some of the brightest domestic and

international legislators have accepted. [FN76]

d. The United Nations Participation Act

The key issue now becomes: How do Members provide the United Nations with its

forces to effectuate the purposes of Article 42? It seems clear that Article 43

was designed with this purpose in mind. Article 43 sets forth the conditions

that must be met before members can provide forces to the Security Council.

First, a special agreement must be reached between the Security Council and the

Member state or states. Second, they must be "in accordance with their

respective constitutional processes." [FN77] (emphasis added).

Under the United Nations Participation Act (UNPA), [FN78] the President must

seek Congressional approval when operating under Article 43, but does not need

Congressional approval when operating under Article 42. Congress, in passing

the UNPA, may have done one of two things. First, it has tricked the President

into believing that s(he) may authorize troops under Article 42 without

Congressional approval, while in actuality, an Article 43 agreement must be

negotiated if troops will be put under U.N. command. Second, Congress may not

only have read the Charter incorrectly, but authorized the President to put

troops under U.N. command and therefore bypassed Article 43 and its own

constitutional processes. No Article 43 agreement has ever been negotiated

since the Charter's existence, but troops have been under U.N. command. [FN79]

This leads one to believe that Congress has unknowingly granted the President

the power to put troops under control in either operational control or command

control, despite PDD-25's assurance that the U.N. will never possess command

control over U.S. forces.

4. The "Constitutional Processes" over U.S. Troops

If Congress has not weakened its own power, the next issue becomes a familiar

but unresolved one: What are the powers of Congress and the President with

respect to U.S. troops and the use of U.S. troops? This debate has raged in

this country before it ever became a country. The Framers of the Constitution

struggled to create the proper balance between President and Congress with

respect to the U.S. armed forces and how they would be employed. Although the

issues may never be resolved, history and legislation provide some guidance

towards a workable solution. It is imperative, however, that the discussion

commerce with plain language of the Constitution.

Article I, Section 8 of the Constitution enumerates the powers of Congress

that are related to national security. These include: the general authority to

"provide for the common Defence, to declare war, to grant letters of marque and

reprisal, to raise and support armies, to provide for a navy, to call up the

militia to repel invasions, to organize, arm, and discipline the militia, to

make rules for regulating the army," and finally, "the power "to make all

Laws...necessary and proper for carrying into Execution the foregoing Powers,

and all other Powers vested by this Constitution in the Government of the United

States, or in any Department or Office thereof." [FN80] Article II of the

Constitution vests powers to the President to "preserve, protect, and defend"

the Constitution, to be the Commander-in-Chief of the armed forces of the United

States and of the states' militia, as well as "taking care that the laws be

faithfully executed. [FN81] The President, however, shares treaty- making power

with the Senate. [FN82] The President has the inherent power to recognize

governments [FN83] and may "enter into executive agreements that are binding as

treaties." [FN84]

It becomes apparent that the plain language of the Constitution will not

sufficiently answer the question posed earlier because the issue is not directly

addressed. The powers over armies seem to side with Congress, however, treaty-

making power tends to favor the President. If the President enters an executive

agreement to put troops under U.N. command, how could s(he) wrestle the troops

from Congress? It is therefore essential that we probe further into history and

historical legislation to find answers.

Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer [FN85] fathered a

classification system by which Presidential actions may be assessed. First,

when the President acts pursuant to an express or implied authorization from

Congress, he exercises not only his power but also those delegated by Congress.

[FN86] Second, when the President acts in the absence of congressional

authorization he may enter "a zone of twilight in which he and Congress may have

concurrent authority, or in which its distribution is uncertain." [FN87]

Finally, when the President acts in contravention of the will of Congress, "his

power is at its lowest ebb," and the Court can only uphold his actions "by

disabling the Congress from acting upon the subject." [FN88]

The question now becomes: has Congress acted, and if it has, was the action in

support of or contrary to the President's wishes? Congress has not enacted any

new legislation concerning Macedonia. The UNPA and the War Powers Resolution

("WPR") are the most cited legislation dealing with this issue. As stated

earlier, it is unclear whether Congress has in fact sanctioned such missions or

intended to force Congressional approval. A third option is that the UNPA, as a

result of its ambiguity, neither sanctions nor condemns such missions. Thus,

the UNPA provides little guidance as to what category the President is in under

Youngstown. The War Powers Resolution similarly offers no assistance in

defining Congressional intent. In fact, the War Powers Resolution specifically

states that "nothing in this joint resolution...is intended to alter the

constitutional authority of the Congress or of the President, or the provisions

of existing treaties." [FN89] Since the Charter is a treaty, this provision

would seem to exclude from WPR coverage any actions of the President pursuant to

the Charter and governed by legislation such as the UNPA. [FN90]

There seems, however, to be a movement in Congress to start negotiating

Article 43 agreements. In 1993, in the wake of Somalia and in the assessment of

the former Yugoslavia, Congress introduced the "Collective Security

Participation Resolution." This resolution would have several effects: First,

it would "affirm congressional support for the consummation of an Article 43

agreement." Second, it would reaffirm the intent of Congress expressed in the

United Nations Participation Act of 1945, in three important respects:

First, an Article 43 agreement shall be subject to the approval of the

Congress by appropriate Act or joint resolution. Second, the President shall

not be deemed to require further authorization of the Congress to make available

to the Security Counsel on its call the military units designated in the

agreement. Third, this authorization may not be construed as authorization to

use forces in addition to those forces designated. [FN91]

This movement may imply that Congress wishes not only to involve U.S. troops

in the operations of the United Nations, but to play a role in the

decisionmaking process as intended by the UNPA. Thus, Congress would be opposed

to the President involving U.S. troops in these missions without Congressional

approval thereby falling into the last category of Justice Jackson's

classification system.

IV. Impact

What seems all too clear is that if the United States would like to

participate in U.N. operations, there are no procedural guidelines to govern the

process. In the short term, the confusion with regard to command and control of

operations may have serious consequences such as failed missions, even loss of

life. If an operation is run by several command bodies, it is virtually

impossible to expect a successful mission. Lives may be sacrificed in the

process. In the long term, such uncoordination may impede the progress of U.N.

operations as an enforcement mechanism. With each failure comes reevaluation in

the military arena, the political arena, and the arena of public opinion. War

in this country is only popular when we win. There is no better example than

the U.S. attack on Iraq. Before invasion, the popular opinion was against the

invasion because our "interests" were not served. [FN92] However, when the war

lasted three or four days with little loss of life on the side of the Americans,

all cheered and hailed the mission a success. The United Nations is like an

extension of the United States in many ways. Therefore, if the United States

decides not to participate in U.N. operations, there is no way the U.N. troops

could be effective.

V. Solutions

This process is in the development stages and must be clarified if the U.S. is

going to assist in the collective security. Several solutions are in order.

First, the debate of our own constitutional processes must not be pushed off

until conflict is on the horizon. All too often, issues of significance are

only addressed when the situation becomes dire. Congress and the President then

expedite a decision without thinking about the political and constitutional

consequences. It is this kind of procrastination which inhibits U.N. success.

The U.S. Courts may be able to play a role in deciding the conflict. The

decision hinges on whether the issue is a "political question" and whether there

is a "textually demonstrable constitutional commitment of the issue to a

coordinate political department." [FN93] Although the war powers were divided

between the executive and legislative branches, a larger international body like

the U.N. was so incomprehensible to the framers that the Constitution cannot

answer the questions posed. Thus, a "neutral" body like the Supreme Court may

be exactly what is needed to decide this issue. Even if it is a "political

question," it seems clear that the issue cannot be resolved by the involved

branches of government and exception should be made. In addition, Congress

should execute a model Article 43 agreement which would be acceptable to them.

Although Article 47 discusses some of the details of command and control,

Congress should demand more of itself and the U.N.

Second, the Security Council, in consultation with the Military Staff

Committee must define each mission and how it reconciles with the U.N. Charter.

The confusion starts with the U.N.'s inability to articulate what type of

mission its forces are on. Part of the problem is that the same forces wear

different hats. The other problem is that the "New World Order" is in its

incipiency. With the help of the International Court of Justice, the United

Nations should be able to define the necessary terms and make the Charter a

living document as the U.S. Constitution is.

V. Conclusion

Deployments to foreign countries under U.N. command are not as simple as the

President would like to make it seem. It requires an extensive inquiry to

overcome many obstacles which reach a somewhat tenuous conclusion. Spc. New's

argument regarding the deployment to Macedonia is legitimate and should be fully

reviewed. The world will increasingly look to the U.N. to intervene in

conflicts that affect international peace and security. If the U.N. does not

have its own army, it must look to its members as the Charter provides. Since

the United States has the most powerful military in the world, we will be asked

to provide assistance by way of troops, equipment and intelligence in

potentially emergency situations. The time has come for the United States to

legally and not emotionally settle the issues posed here.

FN1. Traficant Condemns Court-Martial of U.S. Soldier Who Refused to Wear United

Nations Insiginia, 1996 WL 5167226; Carla Anne Robbins, Army Specialist Michael

New Won't Wear U.N. Blue; Father Runs for Congress, WALL STREET JOURNAL, Jan.

24, 1996 at A1.

FN2. Id.

FN3. Michael G. New v. William Perry, Secretary of Defense, and Togo D. West,

Secretary of the Army, Memorandum of Authorities in Support of Motion for Stay

and Petition for Writ of Habeas Corpus, United States District Court, District

of Columbia, January 12, 1996.

FN4. Although the Directive is confidential and is not being released, analyses

of the Directive have been published. See United States: Administration Policy

on Reforming Multilateral Peace Operations, 33 I.L.M. 795, 795 (1994).

FN5. Id. at 798.

FN6. Id. at 807.

FN7. U.S. Const. art. I, s 9.

FN8. For a full treatment, see FREDERIC L. KIRGIS JR., INTERNATIONAL

ORGANIZATIONS IN THEIR LEGAL SETTING, (West Publishing Co., ed. 1993, (citing

Criteria For Statehood Under International Law: The Case of the Palestine

Liberation Organization, Letter from U.S. Mission, Geneva to Dr. Hiroshi

Nakajima, Director-General of WHO (March 1989)).

FN9. 5 U.S.C. s 7342.

FN10. 5 U.S.C. s 7342(a)(1)(D).

FN11. 5 U.S.C. s 7342(a)(2).

FN12. 5 U.S.C. s 7342(a)(4).

FN13. 32 C.F.R. s 578.19(e).

FN14. Despite the Information Paper issued on October 5, 1995, which stated that

this order does not operate as an involuntary transfer of allegiance, Spc. New

believes this paper to be disingenuous.

FN15. Under the Geneva Convention of Privileges and Immunities of the U.N., a

soldiers is not afforded the same protection as a U.S. soldier. Convention on

Privileges and Immunities of the United Nations, adopted Feb. 13, 1946, 21

U.S.T. 1419, 1 U.N.T.S. (hereinafter P&I Convention); see Geneva Convention

Relative to the Treatment of Prisoners of War, adopted Aug. 12, 1949, 6 U.S.T.

3316, T.I.A.S. No. 3364 (hereinafter GPW).

FN16. U.S. Const. amend. XIII. Spc. New equates the situation a U.S. soldier

would be in with that of black slaves in this country in the 19th century.

FN17. Brian M. Spaid, Collective

Security v. Constitutional

Sovereignty: Can the President

Commit U.S. Troops Under the

Sanction of the United Nations

Security Council Without

Congressional Approval?, 17 DAYTON

L. REV. 1055, 1060 (1992).

FN18. United States:

Administration Policy on Reforming

Multilateral Peace Operations,

May, 1994, 33 I.L.M. 795, 809,

[hereinafter "Decision"]. This is

a statement issued by President

Clinton as justification for the

order to Macedonia as well as

clarification on the President's

reading of how the Constitution

and the U.N. Charter can be

reconciled.

FN19. GPW, supra note 15, art. 2.

FN20. 22 U.S.C. s 287d.

FN21. U.N. CHARTER. art. 7.

FN22. "The parties to any dispute, the continuance of which is likely to

endanger the maintenance of international peace and security, shall, first of

all, seek a solution by negotiation, inquiry, mediation, conciliation,

arbitration, judicial settlement, resort to regional agencies or arrangements,

or other peaceful means of their own choice." U.N. CHARTER. art. 33, para 1.

FN23. U.N. CHARTER. art. 35, para. 1-2.

FN24. U.N. CHARTER, art. 34.

FN25. U.N. CHARTER. art. 33, para 1-2.

FN26. U.N. CHARTER. art. 36, para 1.

FN27. U.N. CHARTER. art. 38.

FN28. U.N. CHARTER. art. 96.

FN29. U.N. CHARTER. art. 37.

FN30. "The Security Council shall determine the existence of any threat to the

peace, breach of the peace, or act of aggression and shall make recommendation

or decide what measures shall be taken in accordance with Articles 41 and 42, to

maintain or restore international peace and security." U.N. CHARTER. art. 39.

FN31. "The Security Council may decide what measures not involving the use of

armed forces are to be employed to give effect its decisions, and it may call

upon the Members of the United Nations to apply such measures. These may

include complete or partial interruption of economic relations and or rail, sea,

air, postal, telegraphic, radio, and other means of communication, and the

severance of diplomatic relations." U.N. CHARTER. art. 41.

FN32. "Should the Security Council consider that measures provided for in

Article 41 would be inadequate or have proved to be inadequate, it may take such

action by air, sea, or land forces as may be necssary to maintain or restore

international peace and security. Such actions may include demonstrations,

blockade, and other operations by air, sea, or land forces of Members of the

United Nations." U.N. CHARTER. art. 42.

FN33. "All Members of the United Nations, in order to contribute to the

maintenance of international peace and security, undertake to make available to

the Security Council, on its call and in accordance with a special agreements or

agreements....such agreements shall govern the numbers and types of forces,

their degree of readiness and general location....the agreements shall be

negotiated between the Council and Members subject to ratification by the

signatory states in accordance with their respective constitutional processes."

U.N. CHARTER. art. 43.

FN34. Decision, supra note 18, at 807-808.

FN35. Decision, supra note 18, at 809.

FN36. It will be discussed later why such distinctions between missions may be

irrelevant.

FN37. Decision, supra note 18, at 809.

FN38. Decision, supra note 18, at 799.

FN39. Decision, supra note 18, at 801. This effort comes in the form of

organizational changes and economies of scale, which is high productivity at a

lower cost.

FN40. Decision, supra note 18, at 808. The Decision cites World War I and II,

Operation Desert Storm, and Croatia, and recently Bosnia as examples of

occasions which U.S. forces were under U.N. command.

FN41. Decision, supra note 18, at 808.

FN42. Id.

FN43. Id.

FN44. See note 18 and accompanying text.

FN45. Michael J. Glennon & Allison R. Hayward, Collective Security and the

Constitution: Can the Commander-in-Chief Power Be Delegated to the United

Nations?, 82 GEO L.J. 1573, 1587-95 (1994).

FN46. Glennon, supra note 45, at 1589.

FN47. Id.

FN48. J. William Snyder, Jr., "Command" versus "Operational Control": A Critical

Review of PDD-25, World Wide Web under "PDD-25," (1995).

FN49. U.N. CHARTER, art. 43, supra

note 33.

FN50. "There shall be established a Military Staff Committee to advise and

assist the Security Counil on all questions relating to the Security Council's

military requirements for the maintenance of international peace and

security....[as well as] be responsible under the Security Council for the

strategic direction of any armed forces placed at the disposal of the Security

Council." U.N. CHARTER. art. 47.

FN51. It is not clear from the Charter exactly what strategic decisions or

direction mean.

FN52. Article 48 of the Charter states: "The action required to carry out the

decision of the Security Council for the maintenance of international peace and

security shall be taken by all the members of the United Nations or by some of

them, as the Security Council may determine." Thus, Article 48 implicitly

states if one country objects to the withdrawal, U.S. forces must stay or face

violation of Article 43 and 48.

FN53. Snyder, supra note 48, at 4.

FN54. Glennon, supra note 45, at 1586.

FN55. James W. Houck, The Command An Control of United Nations Forces in the Era

of "Peace Enforcement," 4 DUKE J. COMP. & INT'L L. 1, 17-18 (1993).

FN56. Operation Desert Storm

reenergized the United Nations,

despite having a minimal role in

execution of the mission, and will

be perceived later in World

History as a watershed event in

the movement toward the "New

World" Order.

FN57. FREDERIC L KIRGIS, JR., INTERNATIONAL ORGANIZATIONS IN THEIR LEGAL

SETTING, (West Publishing Co. ed. 1993, citing BRIAN URQUHART, THE UNITED

NATIONS, COLLECTIVE SECURITY, AND INTERNATIONAL PEACEKEEPING, IN NEGOTIATING

WORLD ORDER: THE ARTISANSHIP AND ARCHITECTURE OF GLOBAL DIPLOMACY 59, 62 (A.

Hendrikson ed. 1986)).

FN58. KIRGIS, supra note 57, at 718.

FN59. KIRGIS, supra note 57, at 717.

FN60. National Defense Authorization Act for Fiscal Year 1993, Pub. L. 102- 484,

106 Stat. 2315 (1992)(codified as amended at 10 U.S.C. 403 (1993): see George K.

Walker, United States National security Law and United Nations Peacekeeping or

Peacemaking Operations, 29 Wake Forest L. Rev. 435, 461 (1994).

FN61. National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-

160, 107 Stat. 1547 (codified at 10 U.S.C. s 403)(1993)); see Walker, supra note

60, at 461.

FN62. 1993 Authorization Act s

1342(a), supra note 60.

FN63. KIRGIS, supra note 57, at 718-19.

FN64. "Peacemakers" refer to the diplomats and leaders of not only the parties

in conflict, but those interested in settling the dispute authorized under Art.

33 Chapter VI of the Charter. This Article contemplates seeking refuge in

negotiation, mediation, arbitration and the like. U.N. Charter art. 33.

FN65. Houck, supra note 55, at 21.

FN66. Id.

FN67. Houck, supra note 60, at 21 (citing "Clashes Go On in Somali Capital,"

N.Y. TIMES, Nov. 21, 1991, at A8.)

FN68. Houck, supra note 55 at 23.

FN69. UNPREDEP stands for United Nations Preventive Deployment.

FN70. "Part 2 Central Europe: The Balkans, Former Yugoslavia, Macedonia," BBC

Summary of World Broadcasts, Aug. 16, 1995, p. 1; "UN to Send Macedonia More

Troops," Reuters, Feb. 13, 1996.

FN71. Id.

FN72. "U.N. Keeps Peace at Porous Border with Macedonia," THE PITTSBURGH POST-

GAZETTE, Oct. 2, 1995, at A1.

FN73. Id. at A2.

FN74. U.N. CHARTER. art. 41.

FN75. U.N. CHARTER. art. 42.

FN76. KIRGIS, supra note 57, at 718.

FN77. U.N. CHARTER. art. 43.

FN78. The President is authorized to negotiate a special agreement or agreements

with the Security Council which shall be subject to the approval of the Congress

by appropriate Act or joint resolution, providing for the numbers and types of

armed forces, their degree of readiness and general location, and the nature of

facilities and assistance, including the rights of passage, to be made available

to the Security Council on its call for the purpose of maintaing international

peace and security in accordance with Article 43 of said Charter. The President

shall not be deemed to require the authorization of the Congress to make

available to the Security Council. 22 U.S.C. s 287d.

FN79. Glennon, supra note 45, at 1593.

FN80. U.N. Const. art. I, s 8; see also Walker, supra note 60, at 472-73.

FN81. U.N. Const. art. II; see Walker, supra note 60, at 472.

FN82. U.N. Const. art. II, s 2, cl. 2.

FN83. This has been considered inherent in the power to receive visiting

ambassadors from foreign nations. U.N. Const. art. II, s 3; Walker, supra note

60, at 472.

FN84. Walker, supra note 60, at 472, (citing United States v. Belmont, 301 U.S.

324, 327-33, (1937)(claiming international compacts and agreements trump state

law)).

FN85. 343 U.S. 579 (1952).

FN86. Walker, supra note 60, at 473-74 (citing Youngstown, 343 U.S. at 635- 38.)

FN87. Id.

FN88. Id.

FN89. 50 U.S.C. s 1547(c)(1) (1988).

FN90. Walker, supra note 60, at 481.

FN91. 139 Cong. Rec. S8707-02, *S8723 (daily ed. July 14, 1993).

FN92. A great debate raged in the early '90's; was this about oil or was it

about thwarting an international terrorist? It was probably a bit of both.

FN93. Baker v. Carr, 369 U.S. 186

(1962).

END OF DOCUMENT

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