War, International Law, and Sovereignty: Reevaluating the Rules of the Game in a New Century

June 24, 2004

Unedited transcript prepared from a tape recording

Proceedings:
MR. DeMUTH:   I’m Chris DeMuth, head of the American Enterprise Institute.  AEI has sponsored a program for many years now on international law treaties and organizations and their relationship to American sovereignty, the American constitution, and American exercise of discretion in international politics in times of war and of peace.  This work has been overseen over the years by the two individuals sitting to my right, Jeremy Rabkin, who is a professor of government at Cornell and a member of AEI's council of academic advisors, and John Yoo, a professor at the University of California-Berkeley Law School, and an adjunct scholar of the American Enterprise Institute.

Jeremy wrote a book for AEI several years ago called "Why Sovereignty Matters.  It provoked an enormous amount of interest, controversy, discussion.  The book sold out.  We were going to reprint it, and Jeremy, watching the developing scene, decided to our great pleasure that he would rewrite and expand the book.  We have just published it, "The Case for Sovereignty: Why the World Should Welcome American Independence."

We will be starting with Jeremy discussing the subject of this book, and then we will move on to two panels on current issues in the law, and particularly focusing on questions of the use of force in the war against terrorism.

Our moderator and leader for the day is Professor Yoo, and I will turn the proceedings over to him now.  John.

MR. YOO:   Thanks, Chris, and welcome all of you to this conference on War, International Law, and Sovereignty.  Just before introducing Jeremy, let me just say a word or two about the conference itself.

The conference was first planned over a year ago, and the topics were chosen at that time.  It has nothing to do with any kind of current events that may be going on in the newspapers today.  This is something that the institute has worked on for many years, and this has been an annual conference that had been done under John Bolton's leadership when he was here, and this is a continuation of the series.

The basic point of the conference, the basic questions we are seeking to ask are what the new challenges that face the United States and other nations in the international system right now, such as rogue nations, weapons of mass destruction, proliferation, international terrorism, asking what kind of structures in international law and our legal systems address those kinds of challenges.  Are they up to it, do they need change or modification, adaptation.  And then what role does nation state sovereignty play within the way we rethink these legal structures and how they should apply to these new challenges.

As you can see, we have two panels that address the question of the laws of war as they apply to a decision to use force, and then the laws of war as they apply to war once it has begun.

Having said that, let me introduce now Jeremy Rabkin.  Jeremy is a professor in the government department at Cornell and, as Chris mentioned, also a visiting scholar at American Enterprise Institute.  He teaches courses on international law and American constitutional history.  He is a person who writes in fields and is a leading scholar in fields including judicial review and the administration state on the one hand, and also here the intellectual origins of sovereignty.  And as Chris said, his first book, "Why Sovereignty Matters," quickly became a classic and is quite prescient in identifying the conflict between the growing efforts at globalization as regulation on the one hand, and national sovereignty on the other, and he has reworked this book into "The Case for Sovereignty," which contains much more discussion of the intellectual roots of sovereignty, and then applies to more of today's problems.

So help me in welcoming Jeremy, who is going to speak for a little while, and then I'll moderate a question-and-answer session.

[Applause.]
BOOK PRESENTATION

PROFESSOR RABKIN:   Ten years ago Louis Hencken (phonetic) was then the president of the American Society for International Law, a very, very respectable academic, gave a speech to the American Society of International Law, in which he said sovereignty is a term that is confused and it's so misused that it should just be banned from polite society, or at least from educated society.  That was only 10 years ago.

Now in the last few months people cannot stop talking about sovereignty, at least regarding Iraq.  Some of the most polite and educated people in the world -- I mean the French --

[Laughter.]

PROFESSOR RABKIN:   -- have made this their central theme.  We must have sovereignty in Iraq, sovereignty, sovereignty, right away, full sovereignty, total sovereignty.

If you are inclined to be optimistic, you can say this shows that we are learning, or the world is learning, or it's awaking from the dream of the 1990s that we have transcended sovereignty.

If you are inclined to be cynical, you can say it's a little bit suspicious that the staunchest advocates of sovereignty in Iraq are France and Germany, which are constantly telling their neighbors that they ought to be pooling sovereignty with France and Germany and sovereignty isn't important, and sovereignty is not something that sophisticated people in Europe need, but Iraqis need it totally and fully, and you might think if you are inclined to cynicism this shows Europeans will say anything to embarrass the United States.  It doesn't show anything.

I think if you are a little more realistic about this, you have to say they wouldn't be using this term if they didn't think it had some edge to it, that it did mean something, that the world does respond to it.

On the other hand, they wouldn't be using it if they thought it had some really well defined or reasonable meaning, because this comes on the heels of a debate about could the United States go to war without the approval of the UN.

So I just want to start by sketching for you two characteristic delusions of our time, which you see in play in the debate about Iraq, both before we went to war and now in handing out authority to the interim government.

Of course, the great delusion in the debate in 2003 was can you go to war without the approval of the United Nations, and everybody in Europe was saying no, you cannot go to war without the approval of the United Nations, and half the world was saying, you can't go to war without the approval of the United Nations.  And this seemed to a whole lot of people totally reasonable because they completely abstracted from literally dozens and dozens of wars involving two-thirds of the member states of the UN over the previous 50 years, which hadn't been approved by the UN.

This is not true that anyone behaves in this way, that they think, well, no, we can't act without the approval of the UN.  This is a new notion in -- if you talk about what are real expectations more or less cranked up for this case of Iraq, and a lot of people went along with it, which shows a lot of people really have this dream or this hope or anyway this rhetorical leaning towards the idea that there is a world structure, the United Nations, which controls whether or not countries can go to war.

On the other side, the current enthusiasm for handing over authority to the interim government suggests that you are sovereign if the UN says you are.  The UN passes a resolution saying you have full sovereignty, then you have full sovereignty, and it doesn't matter whether you are unable to enforce your own laws, it doesn't matter whether you are dependent on foreign troops to keep you in power.  You have full sovereignty if the UN said you had full sovereignty.

A lot of people talk about sovereignty distinguished between external sovereignty and internal sovereignty, and you might think this debate really just very nicely parallels that.  There's the external question of whether you can go to war, and then there's the internal question of whether you're in charge of your territory, and the UN is in charge of them both.

Actually I think it is more useful to notice this, that this distinction between external and internal is actually a very strange distinction, and in fact both sides of it have this in common, the way people are distorting this, which is it abstracts from the role of force.  If no one can go to war without the approval of the UN, it must follow that no one needs to go to war without the approval of the UN, because everyone can entrust their security to the UN because the UN will protect them.  It doesn't have any troops of its own, but that's not the important thing.  It has moral force, and that's really what protects people.

Conversely, if you look at the situation in Iraq, you say the Iraqi government is sovereign because the UN said so, and the really important thing in having the moral authority to enforce your law is the UN told you that you did, and now they have it and so everyone will obey.  There's just that little problem of the terrorists who are blowing up government buildings and now threatening to assassinate the prime minister and they have already killed several other ministers.

These are really characteristic delusions to abstract from force, and they were particularly powerful in the '90s when everybody talked about global governance.  What does global governance mean?  It means the whole world can be coordinated, but we call it governance and not global governance rather than world government, because world government implies the world authority has the troops and the police and it can really enforce -- no, no, no, of course, that's ridiculous, everyone said.  No, we're not talking about that, don't get alarmed, don't be hysterical, don't be silly.  That's not it.  They're not taking over Yellowstone Park with black helicopters, no, no, no.  We're just coordinating.

If you take this seriously -- well, they're just coordinating -- then global governance seems very plausible and the idea that you can have law which is binding without force seems really plausible.  And if it is plausible, then we can have global governance and that's really swell, because there are a lot of people who are ready to tell us what kind of global governance we needed.

Let me come to sovereignty.  The reasonable understanding of sovereignty is that it is not about governance, it's about government, and government is about force.  That is what government is, force, coercion.

And if that sounds really brutal, there are some brutal things we should face up to, but I also will appeal to people who are at the opposite extreme of brutality, as my friend John Yoo can attest, and that is lawyers.

When we have all these technical legal disputes about immunity and sovereign immunity and immunity of sovereign states, they go right for sovereignty as in sovereign immunity or the defense of sovereign acts and all these technical legal doctrines about this.  Distinguishing between a government that happens to run an airline, in which case we just sue the pants off of them because that's just an airline, it's your fault for taking responsibility for it, France.  So we're going to make your airline liable even though you say it's public.

We distinguish between the kind of activities that happen to be run by governments and those things which we say are essentially sovereign which we don't want to be litigating over.

And the things which essentially are sovereign, what are they?  Exactly things that have to do with force, with coercion.

If it sounds brutal, I want to say I think this is really the heart of the liberal vision of the world, which is the American vision of the world, and it is not actually brutal, it is just sober.  It is saying you will not get people to go along with everything that you like voluntarily.  I don't think it is brutal, I think it is actually realistic and not just in this sort of nasty "the world is a dog-eat-dog world," no.  It's saying human beings have a certain intractability, and most of what is valuable in life really depends on that.

That means if you want to have government, you have got to be willing to enforce the law.  Hamilton says in the Federalist Papers, a law which has no means of enforcement, a law which has no penalty attached, is not a law.  It is merely a recommendation.

As soon as you say okay, real law needs force behind it, otherwise it's just talk, it's recommendation, it's not reasonable to ask people to comply with it, because it's saying, well, you go along because you're nice, and if the other people don't, well, don't worry about that, pay no attention.  You just must because it's important for you to be nice.  That's not a law.

As soon as you recognize that, then you immediately come to this question of, oh, okay, well, if we need force, who controls the force?  In constitutional states, which generally speaking are decent states, we have a constitution precisely to define who gets to use force when.  That's what a constitution is.

What it is constituting fundamentally is a scheme of government which determines when and where and how force will be applied.  That's what a constitution means, and sovereignty is fundamentally about constituting the exercise of force.

If you expect this to work over the long term, you want to constitute it with limits.  You want to constitute it in a way that allows for checks and balances and consent, but that's what you're constituting.  Literally the American Constitution -- what was the big change from the Articles of Confederation to the Constitution?  The Constitution was constituting in the first place a national army and a national executive, and that's when everybody said, oh, okay, well, okay, yeah, all right, if we really need that, fine, but then we have to be serious, and being serious means, well, we have to have a directly elected House of Representatives and we have to have these restraints and those restraints.  But people faced squarely we're constituting a government which has force at its disposal.

To say that this is a legal concept is not just layering on something that sounds edifying to conceal the brutality of it.  If you go back to the history of this, the first theorist of sovereignty, Jean Baudin (phonetic) in France, Russist (phonetic) in The Netherlands, Poofendorf (phonetic) in Germany, these people were lawyers.  They were legal scholars.  They had a legal erudition which is stupefying, and they wanted you to know it because they go on and on about precedent from Roman law and every other legal system they heard about.  It is in some fundamental way a legal concept.  It is about who gets to make law and the authority to make law has to be connected in a system that involves the authority to enforce law.

The worst thing about global governance is that it undermines these constitutional structures within sovereign states, those that are lucky enough to have it, and in fact most countries have something that corresponds to a constitution.  Many of them don't have good constitutions, but they really do want to specify who is in charge and who isn't, and that's rather important.

What's really bad about Afghanistan is that real authority is not specified because no one could say out loud the following 12 warlords will share power in the following way.  You couldn't constitute that.  I mean you couldn't say it out loud.

Regimes which are authoritarian and in many ways repressive still have implicit constitutions which people know, which they do say out loud, who is in charge.

Those turned out not to be very stable.  I mean in the long run you want a better constitution than that if you expect to have any success.  But it's important to notice there is a real direct connection between constitutional authority and sovereignty authority, and as I started to say, what's really bad about global governance is it assumes there's this authority out there above constituted authorities which can make rules, which can make standards, which people have to accept, and it's not really going to enforce them so you don't really have to worry, because you don't really have to worry, nobody has to ask who elected them, what is the exact constitutional procedure for making these rules, who are they accountable to, what if you object.  All that is left very fuzzy, deliberately fuzzy because, after all, it's not really government, it's just governance.

At some point you have to say hold on a minute, is it law or is it not law.  If it's recommendations, then that's fine, we hear interesting advice from all kinds of people, and that's fine.  If it's in any way claiming to be law, we want to know who made it, under what authority, and how do they propose to enforce it.

These are not sorehead questions, these are obvious, basic, constitutional questions which we would ask at home.

As soon as you think this through, you say it's really important for us to hold onto what is our answer to everybody at home who says, oh, I don't know, I don't like it, I don't want to go along with this, and we say no, this is law, which you must obey, not only because it will be enforced, but because this is the way in which you get the benefit of living in a generally free country with a legal system that we have accepted this, if you like, social contract we call the Constitution.  This is the way it's going to be done.

That means I think you're not going to have a lot of law between states.  The most you can have pretty much are either contracts and treaties or some background understanding of you stay there and we'll stay here, and everybody has always thought that, okay, there's some rule for customary law.

It was thought by people, reasonably, that sovereignty would make the world a more peaceful place in general, because it gave a way of disengaging potentially conflicting authorities.  You stay there, we'll stay here.  The analogy, which is a very explicit analogy in all these early writings, is with property.  Property in many circumstances helps to reduce conflict.  This is mine, this is yours.  If we are all constantly arguing about who gets to graze his sheep on the commons, you have a lot of conflicts.  Property is a way of saying let's separate our claims.  You do what you want with your land, I do what I want with mine.

Of course, it doesn't answer the question of the bandit, the bully, the aggressor, somebody who says I want it all, or anyway much more than I have, and I don't care who I offend.  That's a real problem.

I think no serious person could seriously believe that this problem could be answered reliably by international institutions, and the proof of this is you ask yourself what country which had a chance to defend itself would forego that chance if it felt really threatened, in deference to international institutions saying, well, you are really not that threatened yet.

As soon as you realize, well, actually, no, it is not reasonable to tell a country just wait, don't defend yourself, wait until the world thinks you need defending, then you acknowledge to yourself not everybody is equally concerned about every country or, to come right to the point, hardly anyone is concerned about a particular country as people in that country itself.  This is a real good argument for sovereignty as a sense of protecting people, but it's also a good argument for sovereignty as a way of structuring the world.

The people who are most at risk ought to be the ones who in the first instance decide what are they going to do to defend themselves.  To think that international institutions can do it, you have to think that everybody is so generous, everybody shares concern about everyone else to such a degree that we could all wait for the global consensus to defend us because the rest of the world cares as much about us as we do.

If this were true, you would have to believe that people were extremely dutiful, not just extremely generous, but also extremely dutiful, because they wait until they get permission.  They wait until someone has said the magic words, Simon says.

I said at the outset I don't think it's brutal to contest this.  I think this is the honor of the human race, a phrase they use a lot in the Federalist Papers.  We need to redeem the honor of the human race.

The human race is not lobotomized.  That means people think about, whoa, I'm in danger.  What.  Huh.  You are asking something which is beyond reasonable human expectations if you ask countries to wait until everybody else thinks it's okay for them to defend themselves.  Everybody used to know this.  Certainly the American Founders did.  Why does anyone pretend otherwise now?  And I want to just briefly tick off two or three what I think are revealing things about the world now.

The biggest reason why we pretend this is not true today is the European Union.  The European Union promotes the notion that countries can share sovereignty, pool their sovereignty, without establishing a new sovereignty over their heads.

What this means is, according to what they say in their treaties, everybody in Europe will have a common foreign policy and a common defense policy, but Europe doesn't have to have troops to protect them.  Everybody will agree to European standards on such things as border controls.  European bureaucrats will say who you let into your country.  But Europe doesn't have to protect your borders or all the borders of Europe.

This is, as they themselves are beginning to see, a little bit awkward and, in fact, faced with real challenge, it turns out they don't disagree, different countries go different ways because they judge their security differently, and their interests differently, and you either say we are in this together or we are separate, and they say, well, no, we're sort of separately in it together, and it's beyond sovereignty.

They have a lot of difficulty selling this to their own people in Europe and I think they really have a psychological compulsion as well as a strategic compulsion to say, this is how the world works.  Everyone does this.  I mean everyone will do this.  More or less everyone does this.  The UN is a larger EU.  I mean it's perfectly reasonable, that's how it works; don't worry.

They also have a strong incentive to say we are as much entitled to have our weight in the world as the United States because we are as prosperous and we are as populous and we are more polite, and it doesn't matter that America has 12 aircraft carriers and we have the Charles deGaulle which cannot get out of port.  That's not the important thing.

Well, sorry, sometimes it is the important thing.  It's particularly important if you have to make a decision about going to war.

I would say there are two other things.  There's a lot of other powers, potential powers in the world.  Look particularly at China and India, who find it rhetorically convenient to say, oh, yeah, there are rules.  Yeah, what about the rule?  Yeah, there are rules.

Now they don't abide by these rules themselves, and there is no reason at all to think they would in the future, but in the meantime in diplomatic maneuvering it's convenient for them to pay lip service to all these things, and then what I think is really important, in the background there's a sort of general atmosphere of let's call it socialist moralizing applied to international relations.  Every country is equal, every country should be equal.  Therefore, all of us need to be consulted.

If you say sovereignty, you are saying in some way every country is equal.  It is certainly equal in its claim to determine what happens in its own territory.  That doesn't mean everyone listens with equal attention to what every country says about the world.  We know this at home.  People listen to Bill Gates with a lot more attention than they listen to my son, who is a 20-year-old computer technician who goes around telling people, no, you have to plug it in, that's why it doesn't.  Ah.  No one listens to him.  They listen a lot to Bill Gates.  Isn't that unfair?

Well, I don't know, it's not really unfair.  I mean they both have certain rights to decide what they want to do with their life.  I hope people decide to make a billion dollars, but anyway, Bill Gates has done it, so people listen more to Bill Gates.

If you have this real resentment against inequality, it's really unfair, then when America says we've got to do something about Iraq, a whole bunch of people look up and that's really unfair, what about those of us who don't want to look up?  I think there's a kind of egalitarian passion here which is perfectly understandable given that that's so much of the rhetoric of the world, but it's quite, if you just think about it for a minute, it's quite crazy.

These are our troops, these are our aircraft carriers.  You want people to listen more to you, you got to spend more money and have something that you bring to the table.

I want to conclude by saying, just coming back to this point that I think a world in which global governance could work would be a world that we wouldn't want to live in.  It would be a world in which people did not think about how is this going to affect our country.

You have no attachment to your own country, which means either everyone is totally selfish, they just think about me, personally, or if you could imagine it, they all think of humanity.  It's humanity that matters and it doesn't really matter to me that thousands of my neighbors are going to die in terrorist attacks.  That doesn't matter to me because people will feel better about it in France if we don't defend ourselves.

You could think of this is you want to as a religious vision, and I don't mean to mock it too much because I think as a religious vision there's some version of this which has a certain kind of appeal, but then you have to ask yourself if the world is fundamentally going to be governed by a religious vision, why should it be the religious vision of Kofi Annan?  Why shouldn't it be the religious vision of Jacques Chirac?  Why not the Bible?  Why not something with a little more authority, we hope, even in heaven than Kofi Annan and UN pronouncements?

We shouldn't want to live in a world in which people are so awed by international bureaucrats flapping their wings that they think, okay, well, we can't do otherwise.  You want people to think for themselves.  You want people to be spirited.  It's not a matter of being unilateral.  Everybody likes to have partners.  Everybody likes to have partners just in real life.

We say that America is a very individualist country.  This does not -- and we say everyone is in business for himself.  Of course, it does not literally mean everybody works out of his garage with no assistance.  Most people work for someone else, work with someone else, or they hire a lot of other people to help them.  What we mean by saying it's individualist is people move around.  They don't feel that their whole life is the Nissan Corporation and sing the company song and bow and say, oh, thank you, thank you, because we are a family.  Which turned out not to be so good for people in Japan now being fired by Nissan.

We think, okay, I have to look out for myself because no one will look out as much for me.  That means, yeah, sure, you need partners, you need allies, you need people you work with, but necessarily the same people all the time over the course of your life.  I think for a lot of reasons it's valuable for America to have partners in any kind of international engagement.  They don't have to be the same partners.  It doesn't always have to be the French, even though they have contributed so much to us back in the 18th century.

To the extent that we do better in our contracts at home, it's because there is an authority in the background to force people to honor their contracts.  There is not anything like that in the world that can really force countries to honor their commitments.

On the one hand, that means, well, you should make yourself more credible.  You should make countries want to deal with you by saying we're pretty honest, we're pretty honorable.  We can do things for you.  We'll be helpful.  Yeah, good.

But it does mean always you have to have in the back of your mind you cannot simply rely on their word.  Self-help goes with sovereignty, and sovereignty goes with this understanding of the world.  The world is not a given.  If you want to be secure, you have to make efforts to secure yourself.

I do not mean at all to say sovereignty, it's the key to life.  People who write these books about self-improvement and always the moral of it is look into yourself and say I am good, I am capable, you know, and go to motivational speakers.  I'm not saying that.  I mean life is a lot more than having your rights.  Life is a lot more than being self-interested.  Life is a lot more than being assertive or confident or anything else.

But it's real important to us at home that we do have these formal legal rights which put certain limits on what people can do to us, and I think it's real important in the world that we have certain boundaries that we say this we will not tolerate people doing to us or threatening to us.

Sovereignty, it's not the sum of either human happiness or political understanding, but I think it's the precondition for human happiness and also for political understanding both at home and abroad.  It's a very, very fundamental concept, and we should be extremely reluctant to either toss it away, as Louis Hencken urged, or to use it in a somewhat capricious and frivolous way as we are doing in Iraq.

What we are saying about Iraq is you can have it immediately.  Well, no, actually, you can't.  It's a real achievement to have sovereignty, and we shouldn't underrate it.  It requires a lot of thought, a lot of effort, a lot of organization, and in some way, yes, a lot of trust.  It's precisely because trust is not a thing you should take for granted in the world, that you should have respect for countries that are able to maintain their sovereignty because it means they are able to at least for certain basic things get people to work together.  That's a real achievement and not one that we should for ourselves, certainly, but for anyone else regard as dispensable.

Thank you.

[Applause.]

MR.           :   Andrew Kelly here has the microphone, so if you'd like to ask a question, please raise your hand and identify yourself before your question.

MR.           :   Stanley Koger (phonetic) with the Cato Institute.

On what legal basis would you criticize the Brezhnev doctrine?

PROFESSOR RABKIN:   The Brezhnev doctrine, for those of you who are not as old as we are, is this claim by Brezhnev or the Soviet Union that any country which has been communist must stay communist.  And I think that is totally unreasonable, and I don't think that is -- I mean totally incompatible with the sovereignty of the countries which he's saying you must be sovereign.  I did not say -- I think you probably heard something that I didn't say -- we insist that other countries be democracies, we insist that they be liberal.  I'm not saying that at all.

I think sovereignty is a very strong argument against the Brezhnev doctrine, and if you say, then why is argument any different from just rhetorical appeals, I'll say this:

I think in a way sovereignty is a legal doctrine.  In a way it is a rhetorical deal, but it's a pretty fundamental one, which is pretty effective.  Most people most of the time really do resent foreign impositions, so it's very, very difficult and expensive, as even the Soviets found, to maintain these foreign impositions.  You have to be really committed to subjugating foreign people if you want to make this stick, and it turns out, even the Soviet Union finally was not quite willing to pay the costs of this.

So I think if you want to like reduce contention, civil war, uprising, conflict in the war, to say okay, look, here's the baseline.  Here's the baseline.  Everyone has his own country.  And that ought to be the end of it.

I take it what your question is, well, how dare we go to Iraq.  Well, it cannot be that everyone has his own country and they can do anything at all they want in that country, no matter how threatening to their neighbors.  There have to be some lines which you say wait a minute, don't cross this line.  And I think it was entirely reasonable to say about Saddam Hussein.

Everyone in the world is threatened by terrorism.  Everybody in the world ought to be doing what they can to suppress terrorism.  If you are coddling and fondling terrorists and encouraging them, you are scary to us.  And given your past behavior, we don't want you to have weapons which you can pass to them.

I personally find that entirely reasonable, although I admit that, you know, this is something that people could reasonably dispute.  I do not say sovereignty is going to have the precision of the Tax Code.  And why not?  Because there's no court standing above all nations to say it means precisely this.

And why is that impossible?  Some people are proposing it.  That's what the International Criminal Court would mean.  And I say this:

No country on the losing end of an international decision is likely to accept it if it feels really threatened.  And that's understandable and that's reasonable.  So the first principle in international affairs is conciliate or intimidate.  And that's a harsh choice, but I don't see what the alternative is.

Yeah.

MR.           :   The International Committee of the Red Cross.

PROFESSOR RABKIN:   Ah.

MR.           :   And as you probably know, we traffic in the laws of armed conflict.

PROFESSOR RABKIN:   I do know that.

MR.           :   Meaning what happens in armed conflict rather than the laws pertaining to the right to get into armed conflict.  The Usid Bellam (phonetic) that you talked about earlier.  And you mentioned that -- you talked about the role of the United Nations in the authorization of the use of force, and since I'm not an expert on that area of the law, my question is, why would you not also mention the other 50 percent, as I understand it, of the law pertaining to the right to use force, which is self-defense.

Is my understanding wrong that the UN charter did not overrule the preexisting law on use of force?  Rather, it added to it, namely that before the UN charter came into being, the rule was self-defense.  If it's not self-defense, it's aggression.  And my understanding is that that was one of the essential aspects of criminal responsibility that gave rise to prosecutions at Nuremberg, a vision that the United States embraced.

So I'm wondering whether it's your view that somehow the law pertaining to the right to enter into the use of force based on self-defense was somehow affected, modified, negated by the birth of the United Nations and its role in determining the right of states to use force.

PROFESSOR RABKIN:   You know, this would be a long story, but -- and it's a disputed story.  I mean different scholars have different interpretations of it.  I think the charter was meant to do two different things.

One was to say only self-defense, and you are saying, oh, that's always the way it was.  If it wasn't self-defense, then you were the aggressor.  Not so.  One of the most common pretexts or rationales for using force was you owe us  money.  You confiscated our property or the property of our nationals.  Gunboat diplomacy.  It was not about aggression, it was about forcing other countries to live up to their commercial obligations.

I think we agreed -- I interpret it this way, partly because the Roosevelt administration had already said earlier unilaterally, we're not going to do this anymore.

You can probably think of other things which were thought to justify force.  If you go back to Groesches (phonetic), it's hundred of pages of law.  Yes, force for this, yes, force for that.  A lot of things other than self-defense in that literal sense of people are going to die if we don't do this.

So I think the UN charter was saying okay, really self-defense, one.  And two, it was saying here is a forum in which you can come and complain and maybe this will get you assistance.

But the charter does say there is an inherent right to self-defense.  It's inherent.  It was there before the charter, and that is right, and now we can debate in any particular case was this required for self-defense.  And the point I'm making is when we have that debate, no serious government is going to allow the answer to be determined by foreigners who don't care or don't care as much about that country as that country itself does.

You raised this question about, well, what about restraints in war, not going to war, but once you're in war, restraints in war.  I guess you'll hear a lot about that at this conference, but I'll just quickly give my view of this, which is of course it's very reasonable to make an agreement with another country, we won't do this if you don't do this.  And if they don't do it, then you don't do it.

We will not attack ships.  We go back to the 18th century when it was amazing, you know, our earliest treaty, we had this treaty with France in which we say, oh, by the way, if we ever go to war, we will give your merchants six months to sell their products and then leave the country, and you'll give our merchants six months to sell their products and leave the country, because we don't want the war to interfere with commerce.

Now that was very generous, that was very nice, and what that was saying is, well, sometimes you have to have a war, but it shouldn't interfere with commerce because commerce is good.  That's all good.  If they defaulted on it, we weren't going to feel bound by it.  It's so obvious that this is the kind of thing you can do if both sides agree to it, and the history of 20th century wars is everybody forgot these restraints and said no, sink their shipping, do submarine warfare.

We were kind of indignant when Germany did it, then we did it.  If you cannot get the other side to agree to the limitations -- like arms control.  We both say we won't build submarines and then they do, well, then we're going to.  We both say we won't build this kind of missile, well, then, they do, well, then, we're going to.

If you act as the Red Cross does, that, oh, no, these are rules of humane conduct which you must always everywhere apply because the Red Cross said so, what you're saying is that the way you fight a war has nothing whatever to do with your security.  It's just your humane obligations.  And that is -- sorry -- to put it bluntly, I think crazy.

We cannot be bound by restrictions that our opponents aren't bound by.  If our opponents are going to put troops and munitions in mosques, we cannot then be bound by the rule that says we don't attack mosques, because the condition of that rule is you stay away from the mosque and we will stay away from it.  If you go into it, we have to pursue you there.

And we could go down a long list of things in which it seems to me the Red Cross is either on the side of the other country fighting America, and why?  Because it's courting popularity.  The idea that the Red Cross is immaculate, neutral, it just stands for heaven -- no one just stands for heaven, I'm sorry.  We don't accept that.  Who do you stand for?  We're neutral, we're totally neutral.  Well, what does that mean?  And it turns out that it doesn't mean enough because not enough people believe it, so you have to find support somewhere, and the Red Cross looks for support with everyone who wants to criticize America and also Israel, which is even more a favorite target of international condemnation than America, and the Red Cross is always there to say, oh, Israel, you are bad, bad, bad.

Okay, fine, that's your game.  I understand it.  But sovereignty means a sovereign government doesn't have to be intimidated.  And it is preposterous for the Red Cross to say these simply are the rules, abstracting from whether the other side has followed them.  It's really, I think, bad for us to be gratuitously torturing people and we ought to punish the people who did it, of course.  But whether we can put pressure on people to some extent, this is a decision we have to make if these people are not playing by any rule at all, which would justify our self-restraint.

And to say the Red Cross will decide how much pressure and when and where -- who is the Red Cross?  And what it shows you is people have confused politics with religion. They think there is a religion of humanity, there is a code of humanity, it's presided over by the high priest of humanity and he lives in Geneva and he wears a red cross just like those other great crusaders for humanity in the 12th century, and isn't it swell.  No, it isn't.  At least not for us.  I mean people in Europe like it fine, they're not fighting the wars.

But a country that is really threatened is going to hold onto its sovereignty and if Switzerland is ever threatened, good luck to the Red Cross, because I wouldn't cross the street to protect them.  They have decided that the world should be such that people rise above anything they need to do to defend themselves.  It's a small country, it's not an important country.  Let it go down is my opinion because it has said it doesn't need friends.  It's so proud of being above alliances.  Great, you can be friendless.  Good luck.

Does that answer your question?

[Laughter.]

PROFESSOR RABKIN:   There's going to be two more panels, and I'm sure they have slightly more lawyerly versions of it.

[Laughter.]

MR.           :   I'll take one more question from Walter Burns and then we'll move right to the next panel.

MR.           :   For reasons having nothing whatever to do with this program this morning, I was yesterday reading Lincoln's second inaugural.  Reading it, I was reminded of this program.  Lincoln says there in part, we will do the right, let us do the right as God gives us to see the right.  No European could say that.  All we can say is, and this is my point, as the UN tells us, gives us to see the right, the moral condition of Europe is reflected in this fact.

PROFESSOR RABKIN:   I totally agree with that.  But I'll add just one other thing, which I think is helpful in just reminding you what America is and why the world should welcome America, because this is something which I think fundamentally the world is better off in the American view of how the world works than the European view.

We will do the right as God gives us to do the right.  Now the real meaning of that is to see the right.  Yes, to see the right as God gives us to -- which is maybe we don't see it fully.  Maybe we don't see it adequately.  God allowed us to see this much.  Maybe He allowed someone else to see more.  That is acknowledging uncertainty.  It is acknowledging uncertainty.

The real alternative to saying as God gives us to see it is to say well, who are you?  He doesn't give anything to you.  He gives it to the high priest in Geneva who is His faithful servant and His prophet and has a red cross on his shield.  He is the one who speaks for God.

Now they are all atheists in Europe so they won't even say that, so you're right, so they say the UN.  But the implication is people cannot judge for themselves.  People cannot judge for themselves, so they need an authority to judge for them.

Now in fact we don't believe that everyone can judge for themself in everything, which is why we do have a government and sovereignty does mean a government, but we also think it's a government that should be in some way accountable, and it's a government that is one of many, and that is saying we acknowledge there is uncertainty.

The whole point of sovereignty is that different people will see different things differently, and it is therefore raising a question.  Maybe it is not right what we do here because they do it differently there.  That is a question.  Sovereignty is always in a way related to some kind of skepticism or at least uncertainty about what is the right thing.  It doesn't mean you are a nihilist; it doesn't mean you say that no one can know.  You do the best you can as God gives you to see the right.

But other people may see it differently, and I think a world in which we acknowledge that, different countries are going to see things differently, that is the human condition, is a safer world and a freer world than one which says the right and the truth is known at least to Kofi Annan, because he is the prophet of humanity, and everyone will say, oh, cut it out, you're exaggerating.

Am I?  What are we talking about?  What are we talking about?  It's the most fundamental thing, which is how you defend yourself, but it's not the ultimately most fundamental thing.   But it's pretty important and it's the thing we have government to do, the things that are the ultimately most important the government can't do.  But the things that government can do, this is the most important one, and if we say, well, it's not something we in the end decide for ourselves, it's something that the UN decides for us, then you have to ask, who is the UN?  What are we talking about?

Literally Kofi Annan said yesterday it would be wrong to give immunity to American troops in Iraq.  You should just focus on that for just a second, and then I'll sit down.  But I mean think what that means.  What Kofi Annan was saying was it's more important to see that Americans are prosecuted for possible war crimes in Iraq than it is to see that Iraqis are defended against terror attacks.

That's an interesting, you know, balance.  On the one hand, some people are going to be humiliated, and some people are even going to be roughed up, and one or two of them may actually be seriously injured in these prisons.  And on the other hand, all of Iraq can fall into chaos and violence and tens of thousands of people could die and they end up with another horrible dictatorship.

Now which of those do you weigh more heavily?  And it turns out Kofi Annan thinks the important thing is to make sure that America is immaculate in its way of proceeding.

Ask yourself this question:  Why is it his call?  Why isn't this decided by the Iraqis?  Why don't the Iraqis decide do we want Americans here or not?  And if we do want Americans here, on what conditions?  We said they are sovereign.  So why isn't it up to them?  No, it's up to humanity, and Kofi Annan guides humanity and says the balance should be struck this way.

I won't even say Kofi Annan is mad, but he is incredibly presumptuous.  He knows the right balance.  And why is that?  Because he saved all of those people in Rwanda in that saintly way of his.

[Laughter.]

PROFESSOR RABKIN:   I mean there is something which does always tend toward a kind of mysticism because you talk about humanity and it's all embracing.  All of humanity agrees, at least its mouthpieces do, particularly if you have only a few of them.  There's something about that that ought to make people uncomfortable.  Not just Americans.  I mean we are much better situated than almost anyone else to stand up for ourselves.

CHANGE TO SIDE 2, TAPE 1

. . . to stand up to this kind of moral intimidation, and we do the world a service by doing it.

There was a time centuries ago when Geneva did the world a service, as did Netherlands and other small countries that stood up to the idea of all Europe is in agreement with what the Pope or the Holy Roman Emperor says.  Unfortunately, those countries don't do it any more, so it is up to us, and we are strong enough to do it, and it's doing the world a service to do it.

Thank you.

[Applause.]

MR.           :   We're going to take a quick one-minute break and give the next set of speakers a chance to come up.  If you want to get a drink, they are in the back.

[Pause.]

MR. RIVKIN:   It's my pleasure to jumpstart the first panel, which is called Rules Governing the Use of Force.  We are also going to speak and then we'll take questions.

The first person to speak is Steve Rademaker.  He is the Assistant Secretary of State for Arms Control and served before that in various capacities in the House of Representatives and before that in the Bush 41 in the White House counsel's office.

Steve.
PANEL I:  BREAKING ALL THE RULES?  USE OF FORCE

MR. RADEMAKER:   Thank you, David.  I just have to say at the outset I feel very fortunate to be following Jeremy Rabkin because after him, virtually anything I could say today will sound very diplomatic, and --

[Laughter.]

MR. RADEMAKER:   -- that will ensure that I don't get in trouble back at the State Department.  But I do have some remarks that I will deliver and then I will look forward to answering your questions afterwards.

The events of September 11, 2001, revealed to America and the world a new threat, qualitatively different than the dangers that have faced us in the past.  This new threat has required us to adopt new policies to confront it.

President Bush eloquently described the threat and the administration's policy response in an address delivered at National Defense University on February 11th of this year.  He stated -- listen carefully to this quote, because I think it succinctly describes the problem that we confront:

"In the cold war, Americans lived under the threats of weapons of mass destruction, but believed that deterrence made those weapons a last resort.  What has changed in the 21st century is that in the hands of terrorists, weapons of mass destruction would be a first resort, the preferred means to further their ideology of suicide and random murder.  These terrible weapons are becoming easier to acquire, build, hide, and transport.  Armed with a single vial of biological agent or a single nuclear weapon, small groups of fanatics or failing states could gain the power to threaten great nations, threaten world peace.  America and the entire civilized world will face this threat for decades to come.  We must confront the danger with open eyes and unbending purpose.  I have made clear to all the policy of this nation.  America will not permit terrorists and dangerous regimes to threaten us with the world's most dangerous weapons."

This policy described by President Bush has many components, including multilateral efforts to control exports of sensitive goods and technologies, interdiction of shipments of such goods and technologies to dangerous regimes through the proliferation security initiative, threat reduction activities that we fund under the Nunn-Lugar program and similar programs in the former Soviet Union and elsewhere, and also the deployment of missile defenses.

The most controversial element, however, has been the policy of preemption, laid out in the September 2002 national security strategy of the United States.  The national security strategy explains the preemption policy as follows:

Given the goals of rogue states and terrorists, the United States can no longer rely on a reactive posture as we have in the past.  The inability to deter a potential attacker, the immediacy of today's threats, and the magnitude of potential harm that could be caused by our adversary's choice of weapons do not permit that option.  We cannot afford to let our enemies strike first.

The United States will not use force in all cases to preempt emerging threats, nor should nations use preemption as a pretext for aggression.  Yet in an age where the enemies of civilization openly and actively seek the world's most destructive technologies, the United States cannot remain idle while dangers gather.

When it comes to dealing with dangerous regimes, the objective of this policy is not, as the critics claim, to encourage U.S. military intervention every time we become concerned that such a regime is seeking weapons of mass destruction.  Rather, the objective is to change the calculus of proliferation for such regimes, to cause them to reconsider their operating assumption that acquisition of weapons of mass destruction will make them safer and stronger.

In this sense preemption is very similar to the doctrine of deterrence that preceded it during the cold war.  The objective of deterrence was never to bring about a thermonuclear exchange with the Soviet Union.  Rather, it was to prevent such an exchange by raising doubts in the minds of the Soviets that they could benefit by using nuclear weapons against us.

Only if deterrence failed would we find ourselves locked into a thermonuclear exchange, and fortunately nuclear deterrence never failed during the cold war.

Similarly, cases in which we have to actually preempt emerging state-sponsored WMD threats should be regarded not as successes of the preemption policy, but rather as failures.  The real measure of the policy's success will be the number of regimes that abandon WMD programs or decide not to pursue such programs in the first place.

The key to achieving this kind of success will lie in persuading potential proliferators that the risk of preemption is real.  Just as deterrence had to be credible to work, the threat of preemption has to be credible if it is to change behavior.

Our policy in Iraq must be considered in this light.  It is today a commonplace criticism of preemption as applied to Iraq that the failure so far to find weapons of mass destruction in Iraq means that the policy was misapplied there and is a failure.  This criticism misses the point of preemption.

It is important to recall that the Bush administration was not alone in believing that Saddam Hussein was actively developing weapons of mass destruction.  The Clinton administration was also convinced of this, as was our Congress.

After considering all available evidence and all available intelligence, the House of Representatives voted 296-113 to authorize military operations against Iraq and the Senate voted in favor by a margin of 77-23.

Before Operation Iraqi Freedom, this same assessment was shared by virtually every other government with an intelligence service.  And the reasons are obvious.  Saddam Hussein was acting like a man with something to hide.  To the very end he persisted in defying pertinent security council resolutions and obstructing the work of United Nations weapons inspectors, even when we made it clear to him that the price of continued defiance would be his removal from power.

The chief United Nations weapons inspector, Hans Blix, was never able to say that Iraq was free of weapons of mass destruction.  He never favored the war, however, and since the war he has written a book in which he confronts the question of why Saddam Hussein refused to cooperate with the United Nations if he had nothing to hide.

Blix offers several theories, the most plausible of which is that Saddam was like someone who puts up a sign warning "beware of dog," without having a dog.  In other words, Blix speculates that Saddam thought he would be safer if he persuaded the rest of the world that he had weapons of mass destruction, even if he did not in fact have such weapons.

Now most countries with weapons of mass destruction programs try to conceal those programs.  Blix's theory therefore raises the interesting question whether we had a duty to figure out in the case of Iraq that the deception ran in the opposite direction, that Saddam was concealing us from not weapons of mass destruction but rather the absence of such weapons.

But the larger point is that Saddam believed that appearing to seek or have weapons of mass destruction would make him safer.  Applying the preemption policy to Iraq, therefore, is eminently justifiable, irrespective of whether weapons of mass destruction were actually there.

After Iraq, it is unlikely that anyone else will make the mistake of pretending to have weapons of mass destruction.  Iraq therefore became the case in which we demonstrated that the preemption policy is for real.  If we want to assess the success of the policy after Iraq, we must apply the test I have already suggested.  Are other regimes abandoning weapons of mass destruction programs or not adopting such programs in the first place?

The early returns are in and they are encouraging.  Last December Colonel Qaddafi of Libya stepped forward and volunteered to abandon his nuclear, chemical, biological, and missile programs.  Interestingly, in the case of his nuclear program, nuclear weapons program, he was not previously under any international pressure to abandon that program because there was no general awareness that the program even existed.

It should also be stressed who Colonel Qaddafi approached when he decided to give up these programs.  He did not go first to the United Nations or the International Atomic Energy Agency, nor did he approach opponents of the Iraq war, such as France, Germany, Russia, or China.  Instead he approached the United States and the United Kingdom, the two leaders of the coalition in Iraq.

This fact alone demonstrates what was motivating him.  Colonel Qaddafi's decision and his subsequent cooperation with U.S. and British experts led directly to the exposure of the AQ CON nuclear proliferation network.  Exposure of this network has given important -- has yielded important evidence of nuclear proliferation to other countries such as North Korea and Iran.

That evidence in turn is contributing in very important ways to ongoing diplomatic efforts to reverse the nuclear weapons programs in those two countries.  None of this would have happened without the existence of a preemption policy and our application of that policy to Iraq.

And while we have not elected to preempt the nuclear programs in North Korea and Iran, we are confident that the existence of the preemption policy and our demonstrated willingness to apply it is reinforcing the diplomacy that we and our allies are currently engaged in with respect to both of these countries.

We are often asked whether the preemption policy is consistent with the United Nations charter and other principles of international law.  Needless to say, we are confident that it is.  Obviously in the case of Iraq, the United States had ample authority under pertinent security council resolutions to use force to compel compliance with the security council's mandates.  This authority was relied upon by us and our allies, Britain and France, for much of the 1990s to enforce the no-fly zones over northern and southern Iraq.

This authority was also relied upon by the Clinton administration to carry out large-scale air strikes during Operation Desert Fox in 1998, as well as many other smaller air strike operations over a period of many years.

We expect that this kind of security council authorization will exist in many if not most of the cases where we might contemplate application of the preemption policy.

This is because the kinds of regimes whose activities will make them candidates for application of this policy are likely to have done things along the way that invite security council censure.

This is not to say, however, that security council action is a sine qua non for application of the policy.  The doctrine of self-defense, for example, may be available to justify use of force in cases where the council has not acted.

It is instructive to recall in this context the use of force by the United States during the Cuban missile crisis.  The naval quarantine imposed by the United States on Cuba was not authorized by the security council but was in our view an appropriate and lawful response to the threat posed to our nation.  As President Kennedy explained at the time, and these are his words:

"We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation's security the constitute maximum peril.  Nuclear weapons are so destructive and ballistic missiles are so swift that any substantial increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace."

These same words could be spoken with regard to many of the threats we face today.  Accordingly, any application of the preemption policy to the kinds of threats described in the 2002 national security strategy of the United States will be just as lawful and lawful for the same reasons as President Kennedy's use of force in response to the threat that our nation faced from weapons of mass destruction in Cuba in 1962.

Thank you.

MR. RIVKIN:   Thank you, Steve.

I originally planned to moderate this panel since one of the original paper presenters, Lee Feinstein, is not here.  I have been pressed into service.  I'm going to deliver some brief remarks particularly focusing on the impact of the UN charter on the preemption policy or what I would call anticipatory self-defense.  And then I will turn it over to John Yoo.

Now there are a lot of people, and you heard the question being posed through an earlier presentation, a lot of people argue that anticipatory self-defense or preemption, how reasonable in light of international realities we face today, how useful as an instrumental matter, as probably John would argue, nevertheless did not survive the adoption of the UN charter of force which requires all members of the UN to refrain in the international relations from the threat or use of force.

In essence, under this view of the charter, you have a very narrow ambit of article 51 which allows you to use force only once you suffer an attack against -- across your frontier, and even then pending the action by the security council and the only other opportunity to use force legitimately in the world governed by the UN charter is, of course, the action by the security council.

I would submit to you that this interpretation relies on a very implausible and crabbed reading of article 51 and other pertinent charter provisions, and it certainly reflects, and that point was made by Jeremy, it reflects a very erroneous albeit unfortunately widely held view, especially among the international law professors, that the UN charter is somehow superseded and vitiated, the entire existing customary body of international law.

In fact, I would argue that the charter neither abrogated the preexisting body of international law, and certainly did not abolish anticipatory self-defense.

Now it is fair to say that it was probably the goal of some people, including Harold Stassen, who served on the American delegation and suggested in his view the right of self-defense was so crabbed that the United States could not engage an enemy fleet steaming towards the New Jersey shore, although perhaps we could prepare our ships to raise anchor.

But as frequently happens in legislative exercises, be it the domestic statutes, international treaties, just because somebody, one of the drafters, wanted to accomplish a particular goal does not necessarily mean that that's what actually got reduced to writing, which is, after all, as a matter of law what matters.

So when the charter is looked at as a whole, its limitations on the use of force are far less stringent.  I would argue that the charter really prohibits the use of force in only three circumstances:  to seize territory, to impose a colonial style government, and that's of course article 2, and the third circumstance in a manner called inconsistent with the purposes of the United Nations.

Thus, for example, the use of military force that does not involve territorial expansion or threatening independence of a member state is not forbidden as long as it is not inconsistent with the UN's purposes.

And these purposes, the most important one, of course, is the maintenance, and the UN, as we know, does many things, probably too many, but certainly one thing it is supposed to do is to maintain international peace and security.

Well, but people often say, what about article 51?  There's this language about armed attack and whatnot.  Does not that sort of belie this view of a charter as described in article 2?

Well, I would argue that if the restrictive reading of a charter was correct, that article 51 really should have been worded and would have been worded in an entirely different manner.  It would have granted to the member states carefully delineated self-defense rooted in customary international law, and specifically highlighting one particular scenario.

In fact, if again what you do as a lawyer, what we are construing a treaty or a domestic statute, you try to construe it in a way that gives meaning, gives purpose to all of the provisions.

So if article 51 really meant what people are sure it means, article 2 makes no sense.  There's no reason to talk about not being able to use force in a manner that's not consistent with the purposes of the United Nations if the only time you can use force on your own would be if somebody carried out an armed attack in your territory.

But aside from the language parsing and with due account to Mr. Stassen's policy preference, one of the things I find most persuasive in viewing the charter in nonrestrictive terms is if you look at what the drafters of that document were actually facing, what were their broad policy imperatives?

I mean given the nature of the UN system that features, of course, veto power by permanent members of the security council, it even gives nonpermanent members an opportunity to block the security council from exercising its so-called chapter 7 powers.

It was quite predictable, even if you did not know at the time the charter was drafted the cold war was coming, it was still quite predictable that the deadlock, the security council deadlock would not be an infrequent occasion.  And I would submit to you that coming from people who just went through World War II, who understood actually what encouraged Hitler, who understood quite well that the failure of the so-called Bryan-Kellogg pact and the absolutist prohibitionist model relative to the use of force paradigm just I believe failed.

It would have been really implausible to argue that these folks en masse have just suddenly adopted a model that took most of the traditional opportunities to use force from sovereign states, invested it in the body that was likely to be deadlocked at least a fair amount of the time, and certainly from the perspective of the American delegation and the veto power was really the sine qua non of our involvement in the United Nations, what would the purpose of insisting on the veto power, if a mere security council inaction would have blocked us from being able to exercise the most important sovereign prerogatives?

Now I mean there are arguments by the other side, of course, are a little more complicated and go beyond the simple parsing of article 51.  But I think it is important for us also to acknowledge, at least in my view, that the arguments used by the people who criticize the use of anticipatory self-defense by this administration, but also the notion that it is allowed under the UN charter sort of intellectually eclectic, to put it mildly, and quite inconsistent.

You know, for example, there are scholars, believe it or not, who seriously argue okay, under article 2.4, you can use force only in a way that's consistent with the purposes of the United Nations.  And it is reasonable to argue, I would submit to you, that removing from power a person like Saddam Hussein, given his record and all the other factors that Steven mentioned, and most of you know about, who used weapons of mass destruction, certainly chemical weapons against the Iranians and his own people, would have been consistent with the purposes of the UN charter.

It's possible to argue to the contrary, even.  Indeed, it was not consonant with promotion of international peace and security.  It was a bad thing.  It would lead to bad things.

My problem is the people who argue that are also usually the same people who argue that it was a good thing to use force against Milosevich because that was consistent with UN purposes.

You know, whatever one thinks about the analytical merits of arguments that Mr. Milosevich, pretty evil guy that he is, posed a greater threat to international peace and security than Mr. Saddam Hussein, or that the Kosovars who undoubtedly were mistreated and oppressed, somehow were more oppressed and mistreated than the Iraqi Shiites and Kurds and therefore more deserving of a rescue -- to me, the very elastic nature of those claims renders them inherently unsuited as legal arguments.

And then you have folks, not all, but a fair number, who argue that as a matter of law, humanitarian intervention in another country is legal under the UN charter presumably because it's always consistent with the charter's laudable goals, but the national security intervention is not somehow similarly legitimate.

I mean it is a fairly decent reading of the charter, but it does not on its face distinguish between those two types of interventions, but from a purely sort of metaphysical perspective, it's also strange.

I mean so humanitarian intervention is okay because you're intervening to protect people in another country, but presumably any national interest intervention is undertaken to protect people in your country or perhaps your allies -- I mean why is it more legitimate to protect foreigners rather than protecting one's own people is not particularly obvious to me.

And so the last argument that people use who realize the difficulty with just proceeding under article 51 and the security council as well, what about collective action?  You know, actions that perhaps are not undertaken by the entire security council.  You have scholars who argue that it's one thing as in Kosovo where we did something that only one country tried to block, namely Russia, or would have blocked the security council from acting.  But if we are acting against the views of numerous countries, that's a different thing, that's illegitimate.

Now I mean from a policy perspective, sort of a modified blocking power of security council is perhaps more reasonable than absolute power in this respect.  The only problem with this argument as a matter of law, there is not absolutely the slightest support in the UN charter for this particular theory.

And last but not least, there are folks who talk about regional organizations which, of course, are described in chapter 8 of the security council, and they are basically saying these are really junior versions of a security council, so if the security council cannot act, collective regional organizations can, and the worst thing is unilateral national security-driven intervention.  There you are just limited to article 51.

Again, the problem with that approach, it's not a bad policy approach.  Everybody would prefer to act collectively.  But there's absolutely nothing, if one reads article 8, that suggests that the regional organizations have any more inherent right to use force than nation states.  And again, stepping aside from law, sort of again from an instrumental perspective, it's a little silly because the people who are pushing that view don't seem to realize the inherent frailty of their approach.  Because if all you have to do in a restrictive regulatory environment where you cannot do it by yourself is ban together with other fellows, you can do that any time since you don't have to get anybody's permission to create a regional organization.  You can do that.

For that matter, the coalition of the willing would qualify as a regional organization.  So that is not a particularly good interpretation.

I'm not going to get into the details, but suffice it to say that the actual practice since the charter was adopted, which really is the way international law is discovered, does not support the restrictive view.

Michael Glennon (phonetic), who wrote a very good article on this subject, notes that since 1945 two-thirds of the members of the United Nations have used force on 291 occasions in interstate conflict in which over 24 million people were killed.

And, you know, I will skip the details.  We can talk about it during the question-and-answer period.

Let me just sort of finish by saying this.  I told you what I don't think the UN charter is.  But -- what it is not.  But what is it?  There are only two possibilities.  You have one approach which suggests that the charter is conceptually muddled, which that does happen with many legal documents.  You have people pushing in opposite directions.

Therefore, again, as a matter of law, it does not impose this restrictive model, but you do have inherent tension between article 4 and article 51, in sort of the overall structure of the charter.

There is another view, which I happen to subscribe to, which perhaps is too clever by half, which suggests that the reason article 51 is in there is to provide a safe harbor.  Remember, everybody was aware at the time the charter was being worked out about their prosecutions in Nuremberg and the prosecutions of Tokyo where both the Japanese and the Nazi war criminals used their self-defense arguments.

In fact, you know, in Nuremberg they were arguing that Hitler's attack against the Soviet Union, for example, was really anticipatory defense because Stalin was going to attack them, and the Japanese were arguing that our economic sanctions were strangling them, et cetera, et cetera.

Those arguments were decisively rejected.  So it is not implausible to argue that the real purpose of article 51 in restating in categorical terms one particular example about anticipatory self-defense was to create a circumstance where if you act within the purview of article 51 -- again lawyers call it safe harbor -- you really are going to be safe even if you lose the war, and you will be in the dock and people will try to pass judgment on you.

If you act in other circumstances, it is not illegal, but we get into what we call in law facts and circumstances, and perhaps you will be found to have violated international law and committed a crime of aggression and it's something that would determine the extent of your culpability.

Let me now turn the presentation over to John Yoo.  John is a professor at Bolt Hall Law School, served before that as a deputy assistant attorney general.  He is an accomplished scholar and author and has written a great many things in the area that has to do with the laws of war.

John.

MR. YOO:  Thanks, David.

I think one thing I would like to say initially is you will see that David Rifkin and Steve Rademaker are far better lawyers than I am because they have essentially done is said here have been changes in the world that we have seen in the last 10 years, and they have tried to figure out how to fit the policies into the existing legal system we have, and I think you have seen a preemption defense can be justified under current international legal rules.

David has essentially argued that the existing international legal rules themselves can be interpreted in a much more broad fashion than is currently the case.  And what I would like to do here is actually ask why we should follow the UN charter system at all and whether it might make sense to start thinking about a different system with which to replace it.

I think some of the reasons for that you have already heard in some of the earlier presentations.  The UN charter system was designed essentially to stop the last war which had been World War I and II, these greater power wars, where large nation states with huge mechanized armies invaded one another.  And the idea was to adopt I think Mr. Rona called it a criminal law type system, a system in which there would be a supernational government which would try to hold a monopoly on the use of force, much like our domestic governments do, except when your own safety and existence is challenged, you are allowed to use force in response in self-defense, much as you are allowed to do at an individual level within our domestic legal systems.

The problem is that the major threats to international security today are not those of France and Germany invading one another anymore.  So, for example, if you look at the most recent spate of wars we've had in the last 10 years, you had Kosovo, which was a war in which the United States did not suffer any direct threat to its own national security and the United States did not actually claim self-defense as a legal justification, and the most compelling justification most people seemed to arrive at is humanitarian intervention.

Look at the war in Afghanistan.  In Afghanistan the United States did not wage war because Afghanistan itself as a nation had attacked the United States.  It attacked Afghanistan because parts of its territory had been essentially taken over and used by a nonstate terrorist organization which had in fact attacked the United States.

And then look at Iraq.  And we can have and are currently having arguments, and I think there are strong ways to justify Iraq in terms of potential weapons of mass destruction proliferation and use that might have threatened the United States.  But one thing Iraq certainly was, and I think most people agree with, was a rogue nation that posed a direct threat to the stability of its neighbors and the region.  Iraq had waved several wars in the region already.  It had caused billions and billions of dollars in damage, killed thousands upon thousands of civilians in their countries, in its own country and the countries around it.

So those are the kinds of problems that the international system faces.  It doesn't make sense to have a UN charter system, it doesn't make sense to have an international legal regime where most countries are prohibited from using force unless there's approval by the security council in which the great powers at the end of World War II, and perhaps doesn't align quite neatly with the great powers of today, any one of them can veto the use of force by the United Nations.  If you don't have that kind of approval, then you have to rely on self-defense.

And as we saw during the cold war, countries including the United States engaged in rather aggressive readings of what self-defense was in order to justify military actions that might not really directly involve a direct threat to the national security of their countries.

And so the -- and I would like to also return to Steve's discussion of the Cuban missile crisis, because it's quite illuminating.  Essentially what happened, I think, is that the self-defense standard got stretched by moving away from a justification in terms of an imminent attack.  That had always been the standard for the use of force in anticipatory self-defense.  That an attack upon you was imminent.  It was so imminent in a sense that bombers were in the air or you could see the armies mobilizing, you could launch a preemptive attack to stop that.

The Cuban missile crisis was a good example of how that concept was stretched and one way to think about how self-defense itself could be reconceptualized to address the problems of today.

In the Cuban missile crisis, there was no information that suggested that the Soviet Union was about to launch a nuclear attack on the United States from Cuba.  In fact, the United States detected that the Soviet Union was transferring missiles and potentially warheads and constructing them there, but the time the United States took military action, putting up a blockage, or as it was called then, a quarantine, around Cuba, there was no evidence that there was an imminent attack.

Instead what was important was that the magnitude of destruction that could have been launched from Cuba was so high that that justified action by the United States earlier than what we would normally think of as imminence.

So one way you could change the system would be to broaden self-defense and move it away from a standard of imminence and more towards an examination of the magnitude of potential harm that might arise and the probability that that harm might occur.

And that kind of standard could provide some use in the way we think of terrorism and rogue states, because the problem with terrorism is that you have no warning of an imminent attack.  Usually with terrorism, particularly in the case of Afghanistan, you might have information about locations of targets or personnel, but probably far removed from when an actual attack would occur.  Because with terrorism, as we saw with al Qaida, the very way they carry out attacks is by surprise, by people disguised as civilians attacking civilian targets, and the imminence standard is just simply not designed to handle that.

Or take weapons of mass destruction in Iraq.  One of the problems with Iraq is that Iraq threatened potentially not just to develop weapons of mass destruction but to secretly proliferate them to other nations and groups that might be hostile to the United States.

Again, the imminence standard is very difficult to apply then because you can't say, for example, that a proliferator might pose an imminent threat of attacking the United States, but you can certainly be sure that that proliferator is passing on weapons to people who would use them.  And you might only have a window of opportunity to attack the proliferator and not those who would actually use the weapons.

But my third and last point is but suppose you wanted to move to a different kind of system entirely from the UN charter system by recognizing that an international criminal law type of approach doesn't fit; that a sort of article 51 self-defense, read broadly, really still doesn't fit the challenges of today, what kind of system might you look at?

First I think one thing to say is what is the goal of the system?  It is a very instrumental system.  What is the goal of the system?  It seems to me, just as in the domestic system, one of the significant goals of government is, you know, protection of individual security of its citizens.  It seems to me the most significant goal of the international system is to provide international stability and security.

I think economists and political scientists would call that a public good, an international public good, because when there's a country or group of countries that provides international stability, they cannot prevent other countries from enjoying it, because when there's international stability, things like trade and economic relationships and travel can occur to the benefit of everyone, and they can't charge for it.  Right?  It's very difficult to charge people for the benefits they receive from international security.

If that's the case, what, you know, economists and political scientists suggest is that an international public good, like security, will always be underprovided because no one nation will have it in their interest to provide the full amount of international security that would be optimal for the system.

The thing I will just leave you with is, is the current institution of the United Nations, the United Nations charter at all designed to encourage a higher level of provision of military actions or nonmilitary actions like sanctions that would promote stability?

In fact, the international system as it is currently designed seems designed to prevent that, to undersupply it.  But the UN charter system gives vetoes to great power countries to stop military action which may very well enhance international stability.

Wouldn't you rather have an international system which encouraged countries to intervene in situations where stability is being undermined?

I will just leave you with this.  This is not just stability in terms of the WMD dimension.  It could actually include stability in a lot of other dimensions, too.

So, for example, Kosovo is more easily defended under a system that looks at international stability rather than humanitarian intervention.  The problem with humanitarian intervention is that it's not applied consistently.

Look at the number of lives that were lost in Rwanda versus the number of lives that were lost in Kosovo.  When the western powers intervened in Kosovo, they did not intervene in Rwanda.  And I think the real explanation is because Kosovo was along the borders of Europe and posed a threat to the stability of Europe, whereas I think unfortunately the western powers did not believe that Rwanda, despite the large number of lives lost in humanitarian intervention there, posed a strategic threat or a threat to stability of any kind.

The question is not just to ask why that occurred, but at least to have a system that would encourage and/or allow intervention in places like Kosovo before getting to the harder cases of why there was no intervention in Rwanda.

I guess the last point I would also ask about on the UN charter system and its collective goods or public goods issue is what role would there be for international institutions in that kind of system.  And one thing you could say is that international institutions still could play a very important role because they could provide, as I think the UN verification teams sought to do in Iraq, they could provide neutral information about whether a country really does pose a threat to international stability, and exactly what Saddam Hussein did in Iraq shows that certain kinds of interventions may be justified.

One thing Hussein did was he tried to defeat efforts to have a neutral verification of how much of a threat he did pose to the international stability in that region, and maybe perhaps after Iraq you will see more cooperation by countries because it will be in their interest to cooperate with things like UN verification teams because it will actually -- it will do more to reassure countries that may be willing to use force to provide public good that they are not actually causing some kind of threat to the system.

With that, I will turn it back to David.

MR. RIVKIN:   Thank you, John.

Without any further ado, why don't we open it to questions.  I will call upon you, recognize you, and indicate to whom you wish to pose the question.

MR.           :   My name is Jeffrey Winograd.  I'm the editor of a newsletter called focusisrael.com here in D.C.   I hope this isn't too far off the mark, but given the remarks that we have heard about sovereignty, the imminent threat standard, the standard that was applied during the Cuban missile crisis, what would be the implications to Israel if there were a sovereign Palestinian state, either solely in Gaza or Gaza and the West Bank?

In other words, would this inhibit Israeli actions as compared to now, or would Israel actually legally have freer reign?  Thank you.

MR.           :   Well, I presume you're asking only in a legal sense, leaving the practical implications of a Palestinian state that may perhaps -- without restrictions on arms control, without restrictions on its military forces and such, nevertheless acquires a modicum of -- but we can -- this is not it.

As a matter of law, I don't think it would fundamentally change the situation.  I mean unfortunately the threat Israel is facing or is likely to face are so direct, real, and immediate, we are not even talking about, you know, preemption against nonimminent threats, even though I agree with John that, you know, threats that are not imminent can nevertheless be very grave.

So I don't see the legal menu that Israel is facing should be different from (inaudible).

MR.           :  (in progress) I agree with the panel, things of a more positive -- I guess when it comes to the issue of international law, and I believe that the UN charter is not the only source of international law.  I believe common practice is a vital source of international law, and I think with that, NATO's intervention in Kosovo was justified under the universality principle of extraterritorial jurisdiction.  But I would like the panel to like touch more on what's the difference between the intervention in Kosovo and the crisis that's going on in Sudan right now.

[Laughter.]

MR.           : ** Steve, you want to say anything about Sudan?  No.

[Laughter.]

MR.           : Well, first, I think you make a very good point about state practice versus the formal rules of the UN charter.  I think you could go through a lot of the complex of the cold war period and the post-cold war period and show that they were, you know, not really legal under, you know, the UN charter; that people really had to stretch at the text.

So what that really shows is that I think you are quite right, that there was a state practice of using force in the international legal system that really kind of deviated from the UN charter, and the question is, since international law at its core is about state practice, shouldn't we follow that approach rather than this more formalistic, legal system of the charter?

That said, you know, I think certainly Kosovo violated the UN charter, and you're asking a comparison of Kosovo and Sudan in a sentence under this very strict reading of the charter, right?

So, first, there was no UN security council approval of the operation.  And certainly at least for the United States, there was no self-defense.  There was no self-defense claim even made by our State Department.

Now some of the other countries in Europe that participate in NATO might have been able to make a self-defense claim, you know, particularly countries very close to Kosovo, perhaps.

Sudan, we don't really know yet because the UN security council could eventually authorize an intervention in Sudan.  But barring that, it would seem to me any self-defense claims would be far weaker by say the NATO countries over Sudan then they were about Kosovo.  It's just very hard to claim humanitarian disasters and civil wars and fighting in Sudan pose a direct threat to the national security say of Great Britain or France.

So I think, you know, in terms of international, putting aside whether morally it is the right thing to do to intervene in Sudan, I think it is a weaker claim if you are operating within the UN charter system.

MR.           : I just wanted to give one example as promised to show that our European allies sometimes are capable of avuncular use of anticipatory self-defense.  Not recently, unfortunately, but if you look at the Suez crisis, you may recall that there was a little bit of a deal involving Britain, France, and Israel, and this was in response to Nasser's nationalization of the Suez Canal, where Israelis got into the fighting with Egyptians, and our French friends and British friends have in essence argued that the threat that this fighting in close proximity to the Suez Canal posed to what, to the future health of world trade, was something that they were concerned about.

When I read it the first time, I said in some ways it's a more expansive argument that the Japanese, the Tojo government used in regard to a justification for attacking Pearl Harbor because, remember, we had sanctions strangling Japan.

Here we are talking about something that posed a threat to world trade.  So it seems that even our European friends are not always buying into the strict interpretation of the UN charter.

MR.           : If I could just offer a few comments.  I have to say one of the great ironies of the Kosovo situation is some of those countries that have been most critical of the policy we pursued in Iraq and among the first to say that not only was it a bad policy, but possibly it was an illegal policy, and a policy contrary to international law, those same countries not only supported the Kosovo operation, but many of them participated in the Kosovo operation, and as a further illustration of the irony here, let me point out the intervention in Kosovo took place almost simultaneously with the NATO summit that was scheduled for here in Washington in 1999, and there was a huge debate coming up to that summit about the new strategic doctrine that NATO wanted to adopt at that summit.

One of the major points of contention between the United States and a number of countries in Europe was on this question of under what circumstances would NATO ever get into a military conflict outside the territory of the NATO allies.  A number of the European countries were pushing very hard to write into the new strategic doctrine of NATO that the only circumstance in which NATO would do that be when the security council had authorized the force of use.

And so there is this huge debate going on in NATO circles leading up to the Washington summit.  Simultaneously the Kosovo situation explodes.  In Europe, everybody says, by God, we've got to do something, and we did, but almost instantaneously the debate about this language in the new strategic doctrine of NATO went away, and those who had been calling for that restriction on NATO's flexibility to act backed away.  Because obviously that would have been utterly inconsistent with what NATO was on the verge of doing at that very same moment in Kosovo.

You know, if you push this legal point, you know, isn't it true that you are unable to find a justification for the Kosovo in the language of the UN charter.  You know, in contrast, of course, to the self-defense argument that we could invoke in the case of Iraq, which is found within the -- you do find a basis for self-defense in the text of the UN charter.

The answer that you get back is humanitarian intervention.  Now, you know, first of all you don't find that concept anywhere in the UN charter, but it's a feel-good concept that obviously a lot of people in Europe are very comfortable with, and so they are able to distinguish humanitarian intervention in Kosovo, good; an intervention in Iraq related to weapons of mass destruction and self-defense rationales, bad.

That's the reality we confront.  I guess I'll just make one observation.

The whole notion of humanitarian intervention is that use of military force to vindicate human rights is just something that has to be lawful, and that's the concept.  And I would merely observe that there are a number of very important human rights, but certainly one of the most valuable human rights -- of all human rights is the right not to be incinerated by nuclear weapons, not to be gassed by chemical weapons, not to be infected by biological weapons, and if international law permits use of military force to deal with the kinds of human rights violations that Milosevich was carrying out in Kosovo, there must be some humanitarian rationale that permits us to use force to defend our own populations against incineration, poisoning, or infection by biological weapons.

MR.           :   Yeah, this is a question for John Yoo.

David Rivkin mentioned Hitler's attack on the Soviet Union, but before Hitler did that, he issued an order which was known as a commissar's order which said, among other things, that this is a new kind of war in which the old rules don't apply; that Russia was not a signatory to the Hague Convention, so therefore had no rights under the Hague Convention, and that German soldiers should not be prosecuted for war crimes, but there should be a broad exemption because of the new kind of war.

Now people were shocked around the world to see memos that you authored and contributed to which echoed these arguments, that the President is above the law, can make the law, Geneva does not apply, that U.S. --

MR.           :   Excuse me.

MR.           :   -- officials should be exempt from war crimes prosecutions.

MR.           :   Excuse me.  This question is --

MR.           :   Do you feel any -- I do have a question.  My question is, this has endangered our troops, endangered broad opposition inside the U.S., within the military, the uniformed military, and around the world.

MR.           :   This question has nothing to do with the topic of this panel.

MR.           :   And has brought shame to this country.

MR.&