Interview with Sean Murphy, George Washington University

July 26th, 2004
Transcription by Volunteer Citizen Journalist Augustino Patti

ECHO CHAMBER PROJECT: Why don’t you go ahead and introduce yourself and you’re role at George Washington.
SEAN MURPHY: I’m Sean Murphy, Professor of International Law at George Washington University. I’ve been here about six years.

ECHO CHAMBER PROJECT: Why don’t you go ahead and describe to me the consensus within the international legal community, when they look at the justifications that the U.S. was making, and what they think of that.
MURPHY: Well, like any community, I don’t think the academic community is monolithic in its view about the legality of invading Iraq, but I would say that the vast majority of scholars in the field of international law would say that the justification asserted by the United States and its allies for invading Iraq is not regarded as being adequate under international law. There is a minority group of academics who believe that the intervention -- invasion is permissible under international law, but I would say that it’s a small minority. And I would further say that it’s mostly based in the United States and is not found so much abroad.

ECHO CHAMBER PROJECT: And so, when you look at the role of the media during this time period, could they have reported on this fact before the actual military intervention?
MURPHY: Well, I think that there was some reporting that took place about what the views of the academic community were, but they tended to be expressed in terms of "Well, there’s this side to the position, and there’s that side to the position" without really establishing that there is a large number of people on this side and a smaller, much smaller number on the other side. So you would see the same two or three or four people who were identifying with the position being advanced by the United States, expressing their views over and over again, even though they really weren’t representative of the academic community at large.

ECHO CHAMBER PROJECT: Talk a little bit about when you look at this legal justification, if you could kind of characterize it and why it really doesn’t make sense.
MURPHY: Well, just at the face value, when you sit back and ask the question, "Is it possible that you can have a resolution adopted back in 1990 to deal with a particular conflict where one state had invaded another?" Can you really take that, and just easily use it to justify an invasion of a country thirteen years later? It’s a bit of a stretch right at the start, unless you can make certain fairly obvious connections. And the problem is, you can’t make those obvious connections. The authorization to use force back in 1990 was pretty clearly focused on Iraq’s invasion of Kuwait, on the need for Iraq to get out, for it to do certain steps in order to re-establish the existing situation at that time. And it authorized states to use force when Iraq was failing to do that. Well, they used that force in 1991, as is well-known. Iraq was kicked out of Kuwait. Iraq agreed to a number of requirements that were imposed on it by the Security Council. And that was the end of the conflict. The problem then becomes -- well, in 2003, when you try to reach back and use that legal authorization, how exactly is it that you can do that? The theory advanced by the Bush administration was that there is sort of a loaded gun lying there that could be picked up at any time, based on a single state’s interpretation or a few states’ interpretation, that Iraq was in non-compliance with provisions of U.N Security Council Resolutions. That theory just doesn’t hold together. The entire regime in which these Resolutions were adopted was a multi-lateral one. It was one where there were many members of the Security Council that were deeply concerned that the authorization to use force be fairly narrow, be targeted, not be used easily -- out of context. And when you track through the different Resolutions, starting in 1990 and on up to the present -- including the one Resolution that was adopted in the context of the actual invasion of Iraq in 2003 -- It just doesn’t hold together to say that that authorization continued to be available for any state to pick up and use whenever it thought it necessary to do so.

ECHO CHAMBER PROJECT: There were a couple of incidences where the United States did attack Iraq under different -- you know, in 1993 and 1998. Can you speak to -- Were they trying to set a precedent? And what makes it not a precedent and not a mandate?
MURPHY: There were very low-level uses of force against Iraq, right from the start of the end of hostilities. There were creation of no-fly zones in northern, and then southern Iraq, in order to help protect Iraqi Shi’a and Iraqi Kurds. And there was relative acceptance of that in the international community. There was some dissent, but there was relative acceptance of it. There were also other strikes, air strikes, in 1993 and later on in the decade as well, where the United States, the United Kingdom, for a certain period of time even France, was willing to see force used in a very targeted, narrow manner in order to stop Iraq from doing certain discreet things -- things that were largely tied into the existing Security Council Resolutions. But there was never at any time a belief that these low-level uses of force were setting a precedent for a wholesale invasion of the country and a toppling of the Iraqi government. That certainly was not the position being expressed by any of the states at the time in undertaking these actions. It certainly was not the sense of other countries watching them do it -- that they were welcoming the ability of states to use such precedence in that type of a manner. And again, when you look at the specific Resolutions that were being argued about, and connecting it into these particular low-level uses of force, you really can’t track it on through to the arguments that were then being deployed in 2003 by the United States.

ECHO CHAMBER PROJECT: Talk about the -- Part of the Bush administration’s legal argument is that the Secretary-General had basically said it was okay under Resolution 678, 687. Can you speak to what weight does it carry for a Secretary-General to say something like that? Especially in the context when Kofi Annan was saying, "You can’t invade Iraq. It wouldn’t be underneath the Charter" in 2003?
MURPHY: Right. On a formal level, the interpretation by the Secretary-General of a Security Council Resolution carries no particular weight. There’s no mechanism within the U.N. Charter that gives the Secretary-General some sort of authority to make interpretive decisions of that kind. Having said that, the reflections and the comments of the Secretary-General are very important. Particularly in a situation where the Secretary-General perhaps has walked out of a meeting with all the Security Council members and purports to be interpreting their beliefs and their views. So you have to be careful about what it is the Secretary-General is saying, at what time, and whose views is he expressing. But having said that, if you were to give it any kind of weight, then presumably the same level of weight should be given in 2003 to the Secretary-General’s fairly clear view that an invasion of Iraq was not permissible under existing Security Council Resolutions. And in saying that, I think you can see that he is not just expressing his own personal view, but was expressing the view of the vast majority of the members of the Security Council -- who, when they met, and they talked about the possibility of invading Iraq, are quite clear in stating that they were not authorizing any state to use force to invade Iraq, at least not at that time. They left open the possibility of a future Resolution, a two-step process. The United States even embarked on that two-step process when it began the possibility of circulating a Resolution that would expressly authorize the invasion, in March of 2003. The U.S. withdrew that Resolution in the face of a very clear loss before the Security Council. So I think it’s quite clear, looking at the Secretary-General’s statement, looking at it in context, that it’s very hard to see that authorization existed.

ECHO CHAMBER PROJECT: Can you speak to -- When they drew up the language of the Resolution, and they vote on it, and then each member state in a way gives their own interpretation. What weight does that give to what is actual -- There is a lot of ambiguity in the Resolution, so does that -- those statements give any sort of precedent at all?
MURPHY: The standard approach in international law is to look first at the text of an instrument. This is particularly clear in the context of treaty interpretation. But even in the interpretation of Security Council Resolutions, you can see in decisions rendered by the International Court of Justice and other fora, that looking at the text is the first stop in an interpretive process. The text is sometimes clear and sometimes it’s more ambiguous, and unfortunately in the context of the invasion of Iraq, we did have a Resolution adopted in November of 2002 that was somewhat vague and did lead to some interpretations. So what does one do then? Well, the second step is to look at comments made by the drafters of the Resolution at the time. And the best way of doing that is looking at the record of the Security Council when it met to adopt the Resolution, because all of the members will typically speak to what the Resolution means, and what it doesn’t mean. And that is helpful then in understanding what does the text of the Resolution mean. Because in the case of this somewhat vague and ambiguous Resolution we had in November of 2003 [sic]. When you look at the comments of the members of the Security Council, it’s quite clear that, again, the vast majority did not believe they were authorizing a use of force against Iraq, nor that such an authorization existed already. Indeed, what you had is member after member saying there’s no automatic authorization here; there’s no sort of ability to fast-track this and simply proceed to use the use of force. Instead, we envisage a two-step process. And even the United Kingdom and the U.S. is quite clear in saying, "Ah yes. We accept there’s not an automatic trigger here of some kind." So you then are left with a belief or an interpretation that there did seem to be a two-step process in mind. And it’s only later on, after the inspectors get into Iraq, and they find no weapons of mass destruction and they’re saying, you know, "We need more time to do this." There’s no enthusiasm at all for that second step of the two-step process. And that’s when the U.S. decided "Well, we’re just gonna go off and do it on our own." But as ambiguous as the Resolution might be interpreted, looked in the context of those statements by members, which I do think are important in reaching a proper interpretation, I think you can only come to a conclusion that there was no authorization at the time. There was envisaged a possible follow-on authorization, and that never occurred.

ECHO CHAMBER PROJECT: In the Butler Report, Jack Straw, they would argue that they would only meet again -- that the language was deliberately ambiguous, that they would only meet, and not decide.
MURPHY: The language wasn’t quite that ambiguous when you read the three paragraphs together that are at play in this particular interpretation. It seems to be pretty clear that they’re talking about reports coming from two particular international organizations -- the International Atomic Energy Agency, which was involved in the inspections of nuclear facilities, and the U.N. Weapons Inspection Group, which was involved in all the other weapons of mass destruction inspections. Those two entities, it appeared from the Resolution, were supposed to provide some sort of report to the Security Council. And if what they were reporting was that there had been falsehoods made by Iraq or weapons found that had not been disclosed, then that would be the basis for further action by the Security Council. That seems to me the best interpretation of what those relevant paragraphs said. The U.S. position, U.K. position, other coalition allies that went into Iraq, seems to be that any report by any state that Iraq is not in compliance with its Resolutions would be sufficient for triggering a use of military force. That clearly can’t be right. There was just far too much concern in November of 2002 by the members of the Security Council that there not be some automatic ability to use force, that the simple report by one country that there’s been non-compliance would be the functional equivalent of that automatic use of force. So that can’t be right. Now, could there have been some other kinds of reports from those two international organizations that could trigger it? Well again, I don’t think the Security Council was just handing over the authority to the International Atomic Energy Agency to suddenly authorize the use of force by other states. And there were different kind of reports that those organizations were giving throughout the end of 2002 and early 2003 that said certain things, but it was a mixed bag. They were saying things like, there is no smoking gun here that we’ve found yet in terms of weapons of mass destruction. On the other hand, we do think we’re getting jerked around some by Iraq. Well that can’t be enough to trigger a use of force. I think the best way of interpreting this -- and it was the case at that time, and it’s been proven even more so in the hindsight -- is to say that you’re looking for fairly definitive reports from these two organizations that there were major problems here -- Either they had found the weapons or they were getting shut out. And then a follow-on meeting by the Security Council saying, "Yeah, okay. We’ve had enough. We’ve played this game long enough. It’s time to go in with military force." That’s what people had in mind, and that’s what didn’t happen.

ECHO CHAMBER PROJECT: If you look at the Butler Report, when they lay it out, they’re taking excerpted quotes from Hans Blix, saying, you know, ‘We’re not getting cooperation.’ But speak a little bit to -- Was it written in the Resolution that it had to be some more formalized reporting that they actually had to submit? UNSCOM [sic] had to give a document saying, ‘They’re in material breach. They’re not giving us cooperation.’ Or can they take excerpted quotes from the Security Council meetings?
MURPHY: The Resolution was, unfortunately, not particularly definitive on this. It did assert that –
ECHO CHAMBER PROJECT: I’m sorry. When you say ‘this,’ I’m not going to be --
MURPHY: Okay. The Security Council Resolution that was adopted in November 2002 was not completely definitive on what exactly was expected from the international organizations that were involved in the weapons inspections. It seemed to be looking for reports that there was dishonesty on the part of Iraq or locating of weapons that hadn’t been declared. It did not say, ‘Well, interim reports don’t count’ or ‘The occasional problems don’t count.’ ‘We’re only looking for a sort of affirmative, final definitive we’ve-done-as-much-as-we-can-do, we-can’t-do-anything-more-with-this-government.’ There’s nothing like that in the Resolution. But the Resolution does seem to be contemplating a fairly serious fulsome reporting of some kind from these organizations, that will then lead to a further Security Council consideration of whether to authorize the use of force. I think when you read the Resolution closely, when you look at what the countries were saying at the time, that seems to be what they had in mind, although unfortunately it was not expressly stated as such.

ECHO CHAMBER PROJECT: When you look at -- Who has the authority to actually -- There seemed to be a blurring of the line of saying that the United States can unilaterally decide when to go to war. What within the Charter and what basis can you say that ‘It’s only up to the U.N. to decide as a whole, as opposed to the member states?’
MURPHY: The basic scheme set up in the U.N. Charter is that states are prohibited against using force against other states to alter their territorial integrity or their political independence. There is, however, the possibility to use force in two circumstances. One is when you are defending yourself. So if you are attacked -- and you get into issues of, is it an imminent attack or an actual attack -- but if you’re attacked, and you’re defending yourself, it’s fully accepted in the U.N. Charter that you can respond with necessary and proportionate self-defense. The other circumstance is when you have been authorized by the Security Council to use force against another state. In the Charter, those are the only two carve-outs to the basic prohibition. So, with respect to the invasion of Iraq, the United States and its allies had to be in a position of either arguing that they were self-defending. And that’s a tough argument, because Iraq obviously had not attacked the U.S. or any of its allies. So you would have to try to conjure up this idea of pre-emption, trying to stop a possible deployment of a weapon of mass destruction months or years in advance, and now’s the time when you have to go in. The U.S. never pushed that legal argument, as much as there was discussion about it -- When you look at the reporting to the Security Council, statements made by the Bush administration at the time, the positions taken by the other coalition allies, nobody was pushing the self-defense argument. The argument instead was "We’ve been authorized by the Security Council." And so that leads you into a discussion of what did those Security Council Resolutions say that were out there? Did they provide such authorization? Was such authorization conditioned in any particular way? Did it cut off at a particular point? Was it limited to particular objectives? Things of that sort. And those are areas where the Bush administration and the other coalition allies run into real problems, because when you look at those Resolutions carefully, they just don’t do what the coalition said that they do.

ECHO CHAMBER PROJECT: You mention in your article the difference between a cease-fire treaty agreement, and the difference between that and a U.N. Security Council Resolution. Can you speak to that difference?
MURPHY: One of the arguments that the Bush administration and the other coalition allies were advancing was that you basically had Iraq materially breaching an agreement to end the war from 1990 to ’91. That material breach allowed the use-of-force authorization that existed back in 1990-91 to be resurrected, such that you could take it and run with it in 2003 to invade Iraq, and seek out weapons of mass destruction, and topple the government of Saddam Hussein. That’s an interesting argument, but it falls short on a number of counts. First of all, the concept of material breach is one closely associated with treaty interpretation. And there you’re typically talking about a treaty between two states, or maybe among several states. And, that one of those states has breached the treaty, and therefore others can respond. Well we don’t have that with respect to the Iraq invasion. There was no treaty between, for instance, the United States and Iraq. There was a Security Council Resolution, passed by the Security Council, that was imposed on Iraq. And there was even an acceptance by Iraq of that Resolution, but there’s nothing between the U.S. and Iraq. So the idea that a material breach by Iraq would trigger some ability of the United States to respond to that material breach, on its own auto-interpretation, really stretches that idea of material breach in treaty interpretation -- stretches it well beyond what I think most scholars would accept. So that’s one basic problem -- that we’re not talking about a material breach of a normal bi-lateral instrument. Another problem is that, as I said, Security Council Resolutions simply are binding on states when adopted under Chapter Seven of the U.N. Charter. There’s not a two-way street here. Whether Iraq had accepted or rejected it doesn’t matter. It’s a binding instrument. And so it’s not even like a treaty at all in the sense of having some level of reciprocity. So it’s a bad idea to carry that kind of interpretation over to a Security Council Resolution. Third major problem is that, this idea of resurrecting the ability to use force is an idea that’s embedded in standard armistice agreements, where two sides that have been fighting reach an armistice, and then they eventually reach a final peace agreement. During the time of the armistice agreement, it is traditionally accepted that one state, if the other state violates the armistice in a serious way, can resume hostilities. But once they reach the peace agreement, that’s the point at which that ability to resume hostilities goes away. And even if you’ve violated the peace agreement in some manner, unless it’s some further attack on the other country, that’s not a basis for resuming the use of force. Well when you look at these particular Resolutions, and try to graft them onto that traditional scenario, the relevant Resolution authorizing a use of force seems to have reached a point in March of 1991 where there was an armistice in place. For a period of about a month, and that was under a Resolution called Resolution 686. Then, in early April of 1991, you get Resolution 687, which appears to be like a formal peace agreement. It was sort of the final big resolution, where all different aspects of what Iraq had to do was agreed upon. And at that point, when you read the Security Council Resolutions, it looks like a definitive end to the hostilities. Under traditional armistice final peace agreement theology, if you will, it would appear that as of the point of that mega-Resolution being adopted in early April 1991, you had a final peace agreement. And there was no ability, even if Iraq violated the Resolution thereafter, to simply re-awaken an ability to use force. That just wasn’t possible even under the traditional armistice approach. Final comment in that regard is that -- Contemporary thinking about this armistice final peace agreement says that there’s actually a big difference when the U.N. gets involved -- that even under that traditional theory where you could use force in response to an armistice violation, isn’t still the case. When the U.N. has become involved, and is in the process of monitoring and overseeing and participating in the conclusion of hostilities, most commentators now say, ‘Once you’ve got the U.N. involved, this idea of individual states on their own, interpreting that there’s been a violation on the other side, and therefore I can resort to the use of force, has fallen away.’ And that we have bought into a system now where these issues of peace and security are ones that, if at all possible, should be handled in a multi-lateral setting. And therefore, once the U.N. has become involved and blessed an armistice, and is working with the parties, there’s not even the ability to re-awaken the use of force if there’s a violation of the armistice agreement, unless the U.N. has agreed that such a violation has occurred.

ECHO CHAMBER PROJECT: You mentioned, a little bit, the proportionality of responding to even breaches and or authorizations, so if you look at the context what 678 and 687 were saying, and then compare that to the proportionality of the U.S.’s alleged response to that.
MURPHY: Even if you accept that there’s a lawful basis under existing Security Council Resolutions for a use of force to do something, you have to ask the question "Well, what exactly is that ‘something’ you can do?" If the violation by Iraq of Resolutions 687 and the provisions relating to weapons of mass destruction is the basis for saying you may now use force, then the best interpretation is that you can only use that force necessary and proportionate to those violations. So the question would be: If Iraq in late 2002 or early 2003 is denying access to particular facilities for weapons inspectors -- Or if, let’s say they had found some weapons and they were refusing to destroy them, using military force necessary and proportionate to get access to those facilities, to destroy what weapons have been discovered, makes complete sense. It doesn’t make sense to say, "Okay, there’s been some breaches of Iraq’s obligations regarding weapons of mass destruction, and here they are, and that therefore is gonna trigger an ability to invade the country wholesale and topple the government." There’s a great disconnect between what’s being alleged to have been violated and what is the consequence of that violation. Now, it is possible that you could express an argument that Iraq has jerked us around so long on weapons of mass destruction that we have no confidence whatsoever that this government is going to continue to be at all helpful -- and the only way to achieve our overall objectives is to depose this government. Well that’s not a completely implausible argument, but I would submit that when you take to it that higher level -- when you say we’re not only reacting to the violations that have occurred, but we’re gonna go way beyond that to undertake a policy objective well beyond anything that appears within the Resolutions themselves -- and indeed, if you look at these Resolutions, the idea that Iraq’s territorial integrity and political independence is to be preserved is quite clearly stated in there -- if you’re gonna take it to that higher level, it really needs to happen within the context of the multi-lateralism that led to those Resolutions in the first place. Meaning "You should be going back to the Security Council Resolution." "You should not be taking on that interpretation on your own."

ECHO CHAMBER PROJECT: When you look at the sort of implicit nature of a lot of these interpretations going on, and then the vast nature of the actions undertaken -- There seems to be no sovereign authority even within the U.N. to say, ‘Hey, wait! This is totally illegal.’ Why didn’t -- What are the mechanisms for the Council to kind of have a sanity check?
MURPHY: Well this is one big problem with international law and institutions -- that it is not designed in a manner that can stop a major power from undertaking an action that it truly wishes to undertake. Those who drafted the U.N. Charter were not under any delusion that, by doing so, they were in fact stopping major powers from undertaking actions they feel essential to their security interests. Indeed, the existence of the ability to veto a Resolution of the Security Council is a nod to the idea that permanent members, major powers need to be able to protect their essential interests. They need to be able to veto certain Resolutions even if everybody else thinks otherwise. So I wouldn’t say it’s a failing of international law and international institutions that it didn’t stop the U.S. from proceeding in the manner that it did proceed. And, indeed, I think when you looked through the rhetoric of the Bush administration, the discourse between the Bush administration and Congress, during this period -- when you look at the attitudes of the U.S. population in terms of polling individuals about, "Does it matter whether we try to cooperate with other states? Does it matter if we try to go back to the U.N?" -- There’s a pretty clearly embedded, normative system here that seems to track fairly closely with the U.N. Charter -- that is, you shouldn’t use force as a general matter. You should only use it if you’re self-defending or maybe if you’re authorized by some entity like the Security Council. And the U.S. paid considerable heed to that normative system throughout the process, even though eventually it did proceed without any apparent Security Council authorization. So it’s not going to stop a major power from acting when it truly chooses to do so. What I think is worth emphasizing though, is that by the U.S. proceeding on this course of action without having obtained authorization, it led itself into a situation where there were significant problems. Problems in raising money to fund the whole thing. Problems in getting other states to contribute troops. Problems in getting countries like Turkey to authorize the introduction of U.S. ground forces, which would have allowed an attack through the northern part of Iraq that never materialized until we got paratroopers in there, which may have led to considerably greater difficulty in the south, because Iraq concentrated its forces down there and therefore may have led to greater casualties on the part of U.S. and coalition soldiers. And that inability to get that cooperation in many respects can be can be charted back to the lack of a Security Council authorization. Certainly, when you look at the vote in the Turkish Parliament, I think that’s pretty clear. So there were costs to the United States and there continue to be costs to the United States in not getting an authorization from the U.N. Security Council. Just compare the outcome in 1990-91, where authorization clearly existed, to what happened in 2003, where it did not. In the financial costs to the United States, the inability to get other states to participate in the operation, the overall success of the operation is radically different in the two examples. And I think that much that can go back to these international laws and institutions. So who knows, but this may prove to be an example where, while international law didn’t stop what happened, there’s now a recognition that there’s big prices to pay if you don’t follow the normative system, and therefore in the future maybe we’ll see some greater fidelity to it.

ECHO CHAMBER PROJECT: So, in other words, it’s only a political decision on states to follow these rules? If there’s not a legal consequence, it’s only a political decision?
MURPHY: There’s certainly no military force that’s out there that will force states to cooperate and to abide by U.N. norms on the use of force -- so we don’t have such a global police. And again, it -- probably quite good that we don’t. Because who knows how that would be structured and who would be running it, and whatnot. Instead, what you have is diplomatic sanctions of a sort that might arise if other countries are refusing to allow you to participate in certain activities -- or to be at certain conferences, or to obtain certain benefits you might otherwise obtain. You can have economic sanctions; obviously those aren’t deployed against the United States, because we’re such an economic powerhouse that it would be very difficult for other countries to do it. But it can lead to difficulties for you in obtaining other policy objectives, whether economic or political, when you so push away the international community. So it is the case that it’s more political, economic, diplomatic coercion, pressures that might bring a state to heed these norms. You’re much more apt to see that happen with a medium-sized or smaller state than some country like the United States. But those pressures are out there.

ECHO CHAMBER PROJECT: In the ideal, isn’t international law designed to protect the weak against the abuses of the strong?
MURPHY: Well I think international law is designed to create a stable and just world system. And that may at times help smaller powers and it may at times not help smaller powers. There are times when small states have done pretty bad things, and they should be held accountable to them. And it’s certainly the case that Iraq under Saddam Hussein, did some pretty bad things too. One of the reasons why this, I think, is a difficult issue for many people is that Iraq, or Saddam Hussein, was not exactly the poster child for the small, defenseless, innocent country. There were a lot of reasons why a lot of people would be happy that Saddam Hussein would be ousted from power. But having said that, the idea in the international legal system is to create a stable and just and orderly society. And so the norms that we have are designed to do that. When you push those norms away, you’re more apt to see de-stabilization. One has to be concerned that if you’re following an interpretation where any state, on its own initiative can decide that there’s a just cause for resorting to war, then you may find in some future scenario -- if let’s say that the Security Council has demanded that India and Pakistan take certain steps to defuse a nuclear confrontation, and then one or the other doesn’t do it -- ‘Can one of those states invoke the Resolution as a basis for going off and attacking the other country?’ We don’t want that. That would de-stabilize the world. That will make the world a worse place. And so when you think about this in the long term, we want to try to find ways of making states more likely to be faithful to this normative system. The Iraq precedent is not a good example of that, but I certainly think in the long term it’s in the U.S.’s interests to try to push that fidelity to the normative system.

ECHO CHAMBER PROJECT: You have an example of many of the member states -- France -- having gone into military interventions without explicit approval. How do you deal with a situation where everyone has dirty hands? Any thoughts on when France is standing up and making these moral, principled arguments, holding up international law as an ideal to follow, but then their own past is not ideal?
MURPHY: Well I think it’s certainly the case that all states have bad deeds in their background in the way that most people have some bad deeds in their background. And what we are concerned with is contemporary society and how it is that states should be operating. And no matter what states have done in the past, they should be seeking to adhere to the norms that we’ve all agreed upon as being the proper norms. Now, France is an example of a country that has gone off on its own foreign frolics at times. And that may make one less likely to say, ‘Well, just because you think this is a bad use of force, why should we pay any attention to you?’ I guess what I would say about that is that France was certainly an articulate vocal critic of the United States, but France was not the only critic. There were plenty of other countries out there that believe the United States was embarked on the wrong course of action. France had a lot of visibility because its charismatic and articulate politicians, and the ability of France to wield the veto power at the Security Council. But Germany wasn’t supporting this, Russia was not supporting this, China was not supporting this -- alot of the other big countries weren’t supporting it. Therefore, it was very important for the U.S. to get a country like the U.K. to come along. A lot of the medium, smaller countries weren’t supporting it at all -- None of those countries are perfect in their records, either internally or externally, but they all have a right to voice their views. And we should be assessing those views based on whether or not we think they’re making credible arguments with respect to the normative system we have -- the institutional system we have -- and let them stand or fall on their face.

ECHO CHAMBER PROJECT: When we look at both the print media and television news media’s coverage of those debates -- Did you see more of a horse race coverage ? -- "Who’s up? Who’s down? Who’s with us? Who’s against us?" Or did you see a substantial analysis of what the actual substance of the debates were?
MURPHY: Well I think that with respect to the media, we saw a tremendous amount of coverage, but there seemed to be an unwillingness to test some of the very basic elements of this normative system that was out there, and asking hard questions. For instance, with respect to the interpretation of Security Council Resolutions, there seemed to be very little effort to, in any kind of systematic way, go through what the Resolutions were, what they said, what they didn’t say, whether it was credible to pin an authorization to use force on them or not. There was very little coverage to that effect, I believe.
When there was coverage, it did tend to be, you know, ‘This expert says that. That expert says this.’ And that was the end of the matter.
With regard to the attitudes of other countries, certainly that was being reported in the media, but again it tended to be ‘The U.S. is saying this. France is saying that. We don’t really know who’s right or wrong, and therefore we’ve just laid it out for you.’ When in fact, there were pretty compelling arguments, at least legal arguments, as to why the U.S. position was just wrong.
And to give you an example, the mere fact that the U.S. was embarked on an effort to get a further Security Council Resolution in February and March of 2003, and was utterly incapable of doing it, because it was quite clear that they not only wouldn’t get the permanent members on board that they had to get on board, but they wouldn’t even get nine votes at the Security Council – sort of the minimum majority necessary to at least make a colorable argument the Security Council is behind you. Well that was a pretty important fact -- that they couldn’t get that -- that they therefore pulled back. And then, by the coalition resorting to arguments of "Well, we’ve got the authority anyway," Well, you know, that just doesn’t seem very credible as a legal argument, and yet not much was made of that within the media, when in fact I think it should have been.

ECHO CHAMBER PROJECT: When you look at the Iraqi Liberation Act passed in 1998, you have this blurring of the line of Ari Fleischer and the Bush administration saying, "It’s our official foreign policy to change the regime in Iraq." But there’s no painting that in the context of any sort of international law perspective of regime change.
MURPHY: There was no effort to connect the idea of regime change under U.S. law to the international normative system where whatever’s happening in U.S. law isn’t binding in any sense on the international system. So there was that kind of a disconnect. There was also a disconnect of, when we adopt a statute that says something like we want to promote regime change, that doesn’t necessarily mean using force to promote regime change. And indeed, if you’d have asked Congress when they adopted that statute, "Have you now authorized the President to use military force?" The answer’s going to be "No." And that’s precisely why you had to have a follow-on resolution to deal with that. So yes, there was a policy of regime change with respect to Iraq the same way we have a policy of regime change with respect to Cuba and North Korea and certain other countries. But that doesn’t mean that there’s an authorization to use force under U.S. law. And it also doesn’t mean that there’s some ability to say, "Well, this has some effect on the way we should be interpreting international law," because it just doesn’t.

ECHO CHAMBER PROJECT: When you say "the normative standard for regime change" -- What is the normative standard? Can you go into -- Is it even legal to have regime change?
MURPHY: Well under international law, you cannot use military force simply to change a government’s regime. You’re prohibited from using force unless you’re defending yourself in some fashion. So there’d be no ability to engage in regime change as sort of a policy for using military force. One could have written the U.N. Charter that way, I suppose, but it would be a very de-stabilized normative system because there’s lots of countries that think another country’s regime should out of power. And if they could just say, "Well, that’s our view, and therefore we can resort to military force, then that’s fine." That’s not the way the Charter is written. You can defend yourself. If in defending yourself it’s necessary and proportionate to oust the other government, fine. That can happen. When you think about World War II, that’s certainly what happened with respect to the Axis Powers. But, other than that, the concept of regime change in international law is mostly interested in promoting human rights standards so that one would scrutinize, monitor regimes of other countries that were engaged in abuses internally, might impose diplomatic, economic sanctions on those countries, to coerce it into abiding by human rights norms. But there is no basis in the U.N. Charter for using military force to engage in a regime change. That type of humanitarian intervention is supported by some scholars, and has gotten greater currency, I would say, in the past ten years or so with the fee events that were related to Kosovo and other matters. But it’s still viewed by the majority of the academic community and others as not being permissible under international law.

ECHO CHAMBER PROJECT: When you look at the humanitarian intervention arguments made after the war by the Bush administration -- Can you speak to that and what the legal arguments, the absence of that sort of angle at all, during the pre-war events?
MURPHY: Well, I think you have to look at a legal argument for invading another country at the time that you’re actually invading the other country. It has to stand or fall at that time, I think. Otherwise, we’ll get into a situation where we say, "Well we’re invading. We’re not quite sure what the basis is going to be. We’ll tell you after we get in there and figure it out." And then "Oh, by the way, we got in there, and we can’t find a basis." And it’s just not going to work that way. So you have to look at what was the basis in March of 2003 for the coalition to go in? Did they have a legal authorization to do it, or didn’t they? And as I’ve indicated, I don’t think they did. Now, after the fact, is it a good thing Saddam Hussein has been ousted? Is Iraq a better place, in terms of less human rights abuses and whatnot? It seems to me, yes. But again, I don’t think you can say that’s a basis for engaging in a use of military force either in March of 2003 or even today. There’s plenty of countries worldwide where there are human rights abuses going on, on a daily basis. North Korea certainly comes to mind, other countries come to mind. If that alone is a basis for any country to say, "We are now going to invade that country and depose its government." I think you’ve introduced a very dangerous and de-stabilizing idea into international society. Because there are a lot of countries who don’t like what’s going on in the country next to them. Maybe they see human rights violations. Maybe they don’t. But they say they do. And if that alone is enough to authorize them to go in and use military force, I think we’re in a much less safe world.

ECHO CHAMBER PROJECT: When we talked to Reed Brody of Human Rights Watch, and he goes and looks at the actual arguments that – When you say regime change, some people just automatically assume you have to use military intervention to change a regime. What are some of the non-violent, diplomatic ways that you can get a regime out, through regime change?
MURPHY: Well it’s entirely possible for either states individually, or for the global community as a whole to impose non-forcible sanctions on countries that you believe we want to change the regime, or at least stop the human rights abuses and whatnot. So the U.N., for instance, has imposed comprehensive sanctions on countries such as Libya in the wake of terrorist acts that Libya had undertaken, and other matters. And those sanctions over time seemed to have been fairly effective in bringing Libya back into the fold of the international community. It has stopped, as far as we can tell, engaging in terrorist activity. It has "‘fessed up to" efforts to obtain weapons of mass destruction, and even is now allowing U.S. and U.K. inspectors to come in to Libya. It has paid compensation to families whose relatives were harmed by acts of Libyan terrorism. So, it’s possible for economic sanctions, particularly when imposed on a global level, to coerce a state over the long term into compliant behavior. In other circumstances it doesn’t work, and Iraq may be an example of that. Iraq had comprehensive economic sanctions throughout the 1990s. It may, ironically, have successfully prevented it from getting any further weapons of mass destruction, but it did not result in Iraq doing a number of the things that the Security Council was hoping that it would do. So economic sanctions is an option, diplomatic sanctions, where you refuse to allow a particular country to participate in international organizations or international conferences, that’s entirely possible. Preventing them from engaging in sporting events might be an important way of signaling displeasure. Any of those non-forceable means you can find examples where it has had a real effect, enforcing compliant behavior. In other circumstances, it has not worked so well.

ECHO CHAMBER PROJECT: Could you try to indict Saddam Hussein as a war criminal? And once you do that, create a taboo for dealing with him?
MURPHY: It’s possible not to just impose sanctions on states as states, or on governments, but also to actually go after particular individuals. You could do that either by targeting their financial assets -- that’s a creative sanction tool that’s been used recently. And the other way is to go after them criminally. So you could indict a leader such as Saddam Hussein before an international criminal court, or before some sort of national court, if it’s got appropriate jurisdiction to do it. And these sorts of things have happened. It’s not always the most effective means of proceeding. Indeed, you have to think hard about whether you want to leave an out for that individual to actually flee the country and go into exile somewhere in the foothills of whatever country as a way of getting past this regime in this particular country. Once you indict them, it raises the stakes considerably. It may make it more difficult, not less difficult, to get that individual out of power.

ECHO CHAMBER PROJECT: So is that one of the reasons why the United States chose to not pursue that path, when Human Rights Watch came to them in the early 90s?
MURPHY: The U.S. continued to gather information on war crimes allegedly committed by Saddam Hussein throughout the 1990s in anticipation of possibly engaging in a prosecution, but it didn’t resist actually calling for the creation of a tribunal. And I do believe that was in large part because they were unsure whether this was ultimately going to be a helpful matter in getting Iraqi compliance.

ECHO CHAMBER PROJECT: Okay. And when you look at the October 10th and 11th resolutions in Congress that were passed, the Bush administration was saying that we need this in order to persuade the U.N. But then once they got to the U.N., they say, "We don’t need any further authorization." Can you speak to the War Powers Act versus -- Where does international law fall in within the U.S. legal structure? Is it factually true to say, "We don’t need any international approval to go with this. We have our own resolution saying that we can go to war"?
MURPHY: Well, it’s clear that you need some kind of authorization from Congress in order to embark on war. As a matter of U.S. constitutional law, it’s clear that Congress has the power to declare war, and it’s the President who then serves as the Commander-in-Chief of the army to implement the war -- the wartime operations. What we had with respect to Iraq was a joint resolution by the Congress, authorizing the use of force. Interestingly, it wasn’t just a blanket authorization; it said "in order to defend the United States" and "to implement Security Council Resolutions." So even within our Constitutional and statutory system, we’re reaching out and we’re using instruments like the U.N. Security Council Resolutions as a means for cabining the authority of the President in embarking on this use of military force. So there’s that connection just based on what the Joint Resolution itself said. If the Joint Resolution had said nothing about Security Council Resolutions or international law, what you would conclude...[Interruption]...Do you want me to start the sentence over?
ECHO CHAMBER PROJECT: Yeah.
MURPHY: Okay. If you were to ask -- If the Joint Resolution had not said anything about Security Council Resolutions and it simply authorized the President to attack Iraq, then as a matter of our U.S. constitutional law, I think that you would say that the President had authority to resort to war, and that you would not be able to charge him with having violated the Constitution or U.S statutory law. But you would still be able to say there’s this separate system, international legal system that’s out there, that also important as a normative structure, and it is possible to violate that. We are a party to a treaty, the U.N. Charter, which sets forth this normative system. And you could reach a conclusion that the President has violated that treaty obligation, as a matter of international law. Now, treaties are part of U.S. law, but a later-in-time instrument, a statute, would be regarded as trumping a prior-in-time treaty. So Congress at any time can authorize a deviation from the U.N. Charter, if it chooses to do so. If you had a Joint Resolution to that effect, as a matter of U.S. law, then they can do it. As a matter of international law, the treaty continues to be paramount, and you can’t invoke a new statute in your national law as a means for escaping from your treaty obligation.

ECHO CHAMBER PROJECT: Wouldn’t Congress have to explicitly say, ‘This action that we’re going to take is going to be violating our treaty obligations or international law?’ And can you still take that angle on this, you know, say that ‘We violated our treaty obligations?’
MURPHY: Congress doesn’t have to say that by passing this statute authorizing the use of force we know that we’re violating our treaty obligations, and we intend to do that. They could say that. They don’t have to. The question would be if someone were to proceed with an action, say in U.S. court, whereby there is a question about whether or not the U.S. was violating its treaty obligations. The court would be interested in whether Congress intended to violate it or not. And if it was a harder call as to what the statute exactly meant, then courts traditionally have tried to interpret statutes to be consistent with international law whenever they can. So if you had a Congressional statute that was a little bit vague, courts would likely say, if they take the case -- and sometimes they declare these cases non-justiciable, that is, they won’t even get into it -- But if they take the case, they might well say, "We’re going to interpret this somewhat vague statute so that it’s consistent with our obligations under the U.N. Charter." We just haven’t had a case arise to that effect.

ECHO CHAMBER PROJECT: Okay. And when you look at the Bush administration’s both -- statements on the record regarding the United Nations and the weapons inspections -- Do you have this sense that they didn’t really want the inspectors to go in? Or they didn’t want it to work, they were looking for a pretext?
MURPHY: Well, I think it’s hard to decide whether the U.S. government as a whole had a view that we didn’t really care whether the inspectors were finding something or not. There are different agencies with the U.S. government, different people within those agencies. It’s not a monolithic instrument. I think that there were many people in the U.S. government who hoped the inspectors would find things and, you know, that that would be a basis for building upon it. When they didn’t find things, I’m sure there were people in the U.S. government who thought we shouldn’t embark on the course we embarked upon. But the President decided what he decided and we did do so. So I think it could have changed things quite a bit if the inspectors had found certain things. They didn’t find things, and we nevertheless embarked on it. So I think you would have to conclude that there were some people, the President perhaps, in the administration who were of the view that "Well, even if we don’t find anything, we’re going to go in." Because that’s ultimately what they did.

ECHO CHAMBER PROJECT: Okay....Okay, final question -- Taking in consideration everything that’s happened in our world -- our governments and our war on terrorism, the war in Iraq, and everything -- Starting from this point now, what would you say your vision for world peace is, and what we need to do to get there?
MURPHY: Well, I think the War on Terrorism, if we can call it a "War on Terrorism," is one where the U.S. really can’t go it alone. It’s not a single country that we need to go out and defeat. It’s just not as simple as that. You need to have a multi-faceted strategy for going after large terrorist groups, individual cells, ranged across a number of countries worldwide. In some instances, a use of force might be appropriate and helpful. In other instances, going after assets is going to be extremely important. In other instances, you’d want to grab hold of people, maybe through extradition treaties, or mutual legal assistance treaties, and you need help doing that. There’s all different ways that one needs to proceed in order to go after terrorist organizations. And you need entities like the international institutions, whether it’s the Security Council or other groups of institutions to help on this. So my vision for how one should be proceeding is to be defining a fairly broad strategy for how you’re gonna get from here to fifteen or twenty years from now. And that strategy is gonna include policy issues, but there’s gonna be legal tools and instruments that you need to deploy to get to where you want to be. And those instruments by and large are not unilateral ones. They’re multi-lateral ones. And that means bringing in other states in a cooperative measure -- cooperative strategy in order to go after particular individuals and particular groups. To get to that point, you need to accept the idea that not all countries think alike, and that we need to be able to go to these other countries, persuade them as to what we want them to do, and convince them that they’re part of the cooperative effort in getting there. And there will be times when they disagree with us. And when that happens, we have to push hard to try to get that agreement, but if we can’t, we need to roll with the punches. We need to say, "Okay, let’s try to do it a different way." Or "Okay, maybe we won’t try this particular tactic, we’ll try some others that we can agree upon." Until we get into a mindset where we are thinking in those terms, [END OF INTERVIEW TAPE]