Interview with Ruth Wedgwood, International Law Professor, Johns Hopkins School of Advanced International Studies

August 3rd, 2004
Transcribed by Joey Sichol

ECHO CHAMBER PROJECT: Why don't you go ahead and introduce yourself and what you do here at SAIS.
RUTH WEDGWOOD: My name is Ruth Wedgwood and I'm a professor of international law -- and diplomacy according to my title -- at Johns Hopkins University, which has a school of foreign policy -- the School of Advanced International Studies in Washington near DuPont Circle. Before that, I was a professor of International Law at Yale for about fifteen years. Before that I was a prosecutor for about eight years in New York City and in Washington with the federal government. And before that I clerked for the Supreme Court for Harry Blackman, and the second circuit court of appeals for Henry Friendly.

ECHO CHAMBER PROJECT: Okay. And so when you look at the legal argument that the United States put forth to the United Nations, can you kind of characterize how it works? And kind of explain it a little bit?
WEDGWOOD: Which legal argument?
ECHO CHAMBER PROJECT: The legal argument for -- I'm sorry -- With regards to 687 and 678, and the legal argument that was put forth in terms of the justification for going to -- the liberation of Iraq.
WEDGWOOD: Well -- Most often the US government, Democrat or Republican administration alike, doesn't issue white papers. You don't see big thick law review articles coming out of the legal advisor's office at the State Department. Rather they either have Presidents give speeches or they're speeches in the Security Council, or they're actions that are commented on later by commentators. So it's hard to again say there's a single theory for doing something -- In any case, whether its the action in Kosovo under President Clinton or the invasion of Grenada under President Reagan or the invasion of Panama under Bush the father. So there's no single -- There's no single white paper you can point to as "the theory." I think, to my mind, the most persuasive argument for Iraq on the weapons side was the multilateral project that the UN had in tow from 1991 on. If you read what Saddam's people used to like to call "The Mother of All Resolutions," which was resolution 687 from March of 1991, it set various conditions that Iraq would have to meet for a cease fire -- for a durable, essentially permanent, ceasefire at the end of the Gulf War. Because don't forget, in 1991 the Allies took the decision not to go to Baghdad. And at that time, the decision not to go to Baghdad was kind of romantic. It was the hope that you could show you didn't have to conquer a country. You didn't have to seek unconditional surrender. You didn't have to have a replica of Germany or Japan in order to accomplish the purposes of a limited war. Rather, all you wanted out of it was to defang Saddam so that he wouldn't threaten his neighbors anymore -- he wouldn't harm the Kurds, and any additional circumstances. So 687 set the conditions for that. And it said that Saddam uniquely among all leaders of the world, Iraq uniquely among all countries of the world, had an absolute obligation not to acquire weapons of mass destruction -- biological, chemical, nuclear nor any ballistic missiles with a range above 150 kilometers. And those were very serious conditions, very seriously thought about at the time. So I had been following the adventures of the UN weapons agency all through the 90s called UNSCOM, "UN Special Commission on Iraq," which was initially supposed to be a very limited-range project. When the first director was appointed, a Swede named Rolf Ekeus, who had a very long, distinguished background in -- if one can characterize it this way -- the liberal politics of disarmament. And Ekeus expected to be there for perhaps 6 months, maybe 12 months, maybe 18, just to verify what Saddam was clearly going to do because he'd signed a paper saying he would. And it was a great surprise to Mrs. Ekeus to Rolf Ekeus to everybody that Saddam seemed to be so intractable, so committed to retaining WMD -- so just rankly stubborn. When Iraq's power in the region, it's once upon a time trajectory as an important player -- circa say 1980 -- before Saddam really took a hammer hold over the country. That all had rested on the economic power of Iraq, on its relatively secular culture, on its keystone state position, none of it needed to be bolstered by WMD. So I think everybody who was originally committed to this project to show that you don't have to fight wars to a bloody conclusion, and who was committed to powerful norms of disarmament was in turn committed to the success of UNSCOM. And how you overcome the will of a man who clearly enjoys playing hounds and hares -- and clearly enjoys the game in part perhaps for his political prestige in the region. "What you do in that case" was the dilemma. So for me personally, I won't say for the US Government, the clearest theory always -- and it wasn't a theory, it was a commitment -- was resolution 687, the mandated disarmament of Iraq as the only ultimately stable conclusion to the first Gulf War. And there are debates, clearly, about what happens if you have a council resolution -- that's like law, council resolutions are legal mandates. They are binding on every country in the world under Article 25 of the UN Charter. But what happens if you have one that's not enforced? Do you have to go to the council every time to seek a kind of spot market vote on enforcement? And if the Chinese are feeling grumpy that day because of something to do with Taiwan -- or Guatemala recognized Taiwan -- or if the Chinese -- or if the French relationship for some period of time is not going well, does that mean that the Council resolution stands hollow? Or does anybody who was part of that original coalition have a right to depend upon the security condition that that resolution set forth? Now if it was a boundary -- if you had a country invading another country, going over a territorial boundary, you'd say that the invaded country absolutely had a right to respond without waiting for Security Council action -- traditional-self defense -- armed attack across a border, classic case. But why do you care about borders? You care about borders because they are essential to the security of the country that was invaded. And even if the border area is desert or mountaintops or something very remote where nobody lives -- so who cares about a couple of hectares or acres of land? You care about it because it's a security guarantee. And so too -- in a great many ways, these promises by Iraq were security guarantees, that were as solemn as can be. In a way, more solemn than treaties, because treaties can be withdrawn from ultimately. But the council resolution is mandatory. So I think the first and foremost theory -- and it's not a theory, it was an ethical commitment by Iraq -- was its frustration of the disarmament promises that had been made. And then there is of course -- although it was not relied upon at the time, because it's a developing norm, but there's the kind of post-Kosovo argument. And I wish I could go into it in some length if you want to.

ECHO CHAMBER PROJECT: What I wanted to ask is that there seemed to be during the time period between August and -- well, specifically after October of '02, and leading up to the military intervention on March 19 -- there seemed to be a confusion within the media. Specifically, can you speak to was this an action of preemptive self-defense?
WEDGWOOD: No, absolutely not.
ECHO CHAMBER PROJECT: I'm sorry -- Okay, So -- So just stand on its own --
WEDGWOOD: The irony, I suppose, of the more histrionic readings of what was the Iraq enforcement action is that usually the US is criticized for having too few legal theories. We're usually mute. We usually again treat it later in a common lawyer's fashion of many conditions, many hedges, many footnotes, many reservations. Coincidentally post-9-11, the Bush administration had issued its white paper on preemptive self-defense, which was the argument that in an age of weapons of mass destruction, when they're -- you face adversaries where deterrents may not work -- either because the leader is a lunatic or uncaring of his own people, or because it's a non-state actor -- that you'd have to begin to think about a right to proceed, not simply against intention, but against capacity. It's not a new idea. I've always maintained in the classroom for years that the Cuban Missile Crisis -- if you think about it -- is a case of preemptive self-defense. Because we didn't suppose that Castro or the Soviets were about to launch missiles at us. But having nuclear weapons ninety miles off the shores of Florida, decreasing the launch time -- even though every country in the world in principle had a right to have nuclear weapons -- if it hadn't joined the NPT -- the nuclear non-proliferation treaty. Nonetheless, putting them there was so deeply destabilizing, so deeply intimidating, that it couldn't be allowed to stand. And President Kennedy put in place the embargo called a quarantine -- to use more docile language -- but it was an embargo, a blockade. Which in some other settings would have been called an act of war. And we got lucky. And both sides were sane. And the Soviet ships turned back. And it worked out fine. But that was a use of force against capacity. So it's happened in the past. But in the case of Iraq, that stands quite separately. That is a case that really stems from -- historically in its political drum roll to its denouement -- from the flouting of Security Council resolutions by Iraq. And the council has a right under the charter to act against any threat to peace and security. It doesn't have to wait for a breach of the peace. Doesn't have to wait for an armed attack. The council is uniquely endowed within the language of the charter with this right to act against a threat at a very early stage. So it was to make good on the Security Council resolution.

ECHO CHAMBER PROJECT: Okay. And so in other words Iraq was not a active preemptive self-defense from the legal case that was --
WEDGWOOD: Well, I suppose if you held to a theory of -- Lawyers have a way of saying, "I'm going to hold up my pants with belts, suspenders, garters and paperclips." And if you held to a theory of preemptive self-defense, then you could use that theory as well. But even if you violently and vituperatively reject a theory of preemptive self-defense as being dangerous, as being something we wouldn't want to see in the hands of other countries, so therefore "Why should we do it?" Even then, this case is different. This is an old-fashioned case, to my mind, of making good on Security Council commitments. And to me the lesson of the 90s -- and this is something that transcends left and right and liberal and conservative -- is that too often the council has been feckless: feckless in Bosnia, feckless in Rwanda, never makes good on its pledges or its mandates -- Makes promises it can't keep. Often beguiles people to relying upon it -- as in the safe areas in Bosnia -- and then leads them like lambs to the slaughter -- That the UN's greatest problem has been a lack of credibility, that it means what it says. That when push comes to shove, it still seems to always prefer to suppose that rational, Habermasian discourse can take care of every problem -- and certainly that should be used and explored. But in the real world with a lot of societies that are self-selecting for thugs, that kind of rational action doesn't get you very far. So to my mind, this was about vindicating 687, vindicating the absolute conditions of the ["serxes" ??? "ceasefire"] of the original Gulf War.

ECHO CHAMBER PROJECT: When we spoke to Sean Murphy of George Washington University, he argues that you have to look at both 678, 686 and 687. So how do you take into consideration the provisions in 686?
WEDGWOOD: Well to laypeople, this flinging of resolutions off seems quite prolix and dense. In 6 -- Originally, when Saddam invaded Kuwait, the council exhausted the idea of economic sanctions. It could have let the sanctions go on for another twelve years too, I suppose, to try to push Saddam out of Kuwait. But if you recall Primakov visited with Saddam and gave him one last chance to withdraw. And that was a moment by the way that proved to my mind that waiting is not always cost-free. Because it was in that six-week period, eight-week period, when Primakov visited that UNSCOM later discovered Saddam in that interval had weaponized his chemical and biological weapons. So sometimes waiting can kill people and harm civilians. When the war is fought to an effective conclusion on the "highway of death," and Colin Powell decides he doesn't want to do a turkey shoot of -- Although frankly, I think many people wish that we had been effective in disassembling the Republican Guard at the time we could, because they later were very, very brutal, as you know, to the Kurds in the North again, and the Shia in the South. And with our misjudgment, I think, on the helicopters, where we let them retain the right to use helicopters. There was a second genocide after the Gulf War when Saddam really tried to just eviscerate his enemies. But 678 authorizes the use of force, and looks to the expulsion of Iraq from Kuwait and the restoration of peace and security in the region. And then 687 sets the particular conditions for the ceasefire. Some people, I suppose, would give a particularistic reading to the use of force, and say, "It was only about getting Iraq out of Kuwait. They're gone. So what if they've threatened on the border again throughout the 90s? Still, they're gone from Kuwait." But I think its fair to say -- kind of like a three-bite rule of a dog in the neighborhood -- that the international community has a right to say that "If you have a very bad history of action -- If you've killed your Kurds in the North in a nice little genocide, and invaded Iran, and invaded Kuwait, that we're going to set more stringent conditions on you than have been set on other countries." And you have to do it reasonably. I mean, nobody wants to repeat the mistake of Versailles, where the Allies were essentially starving Germany, and where it helped Hitler come to power. But to my mind it is reasonable to have a kind of a "proper name" security politics, where you look at who's in power and what their default action has been in the past. And to put on this extraordinary disarmament regime, which was not at all separated from, to my mind, Saddam's past ambitions to roil the region, to be the tough guy of the region, to intimidate his neighbors. The typical attitude of the region always was -- if you talked to any experienced diplomat who has been around and talks to Arab leaders in private -- was, "Don't mess around with this guy. Don't do have half measures. Don't leave us hanging as you did in '91. If you're going to go against him, you have to finish it. And until you do, we're going to sit back and protect ourselves." But nobody ultimately thought he was a Pan-Arabic champion of Islam or of Arabic politics or culture.

ECHO CHAMBER PROJECT: When we talked to Sean Murphy, he says that there are three big problems with the legal argument. One that 686, in operative paragraph 4, saying that there are eight measures that are explicitly constraining the use of force. And then 687 has an explicit authorization for the use of military force -- explicit penalty for not complying with the sanctions. And so the legal theory is depending on all these implicit readings. And so when you look at -- How do you interpret resolutions? What is the hierarchy? Is it first, look at what's the written word? Second, do you look at what the debate is? Third, how do you determine what the truth is when you try to interpret these types of resolutions?
WEDGWOOD: Well, you have to read resolutions reasonably like you do any other legal argument. They are crafted in a very political environment. Nobody should ever have the illusion that the council is not political. Just because people use universalistic language, which is one of the problems with ever relying on it as your sole security architecture. I mean, the romance of 1945 is gone. Was there a supposition that sanctions would be sufficient to get Saddam to give up his weapons? Sure. I don't have the language in front of me, and I wasn't aware before we filmed of Sean's specific argument here. But, was the hope that the onerousness of the sanctions would themselves be sufficient to gain Iraqi compliance? Of course. That's why the sanctions had been kept in place at some considerable cost to the civilian population, because Saddam then used them as a weapon to say that "It's the West who is starving you, not me." And one of the tragedies, frankly, of the Oil-for-Food Program has been that -- although it mitigated the harshness of the sanctions to some degree on civilians -- still its huge leaking -- which everybody knows, concedes was the case -- of billions of dollars, means that you really ultimately, can't ever get through sanctions at what a state thinks is vital to its interests. Gary Hufbauer, who is an economist here in Washington at the International Institute for Economics, has done a study of sanctions. This has been the favorite fallback policy tool of the UN community, and originally of the League of Nations for decades now. Concerns always that under the law of war, sanctions would often be seem as an illicit instrument, because they are pressuring the civilians to pressure the leader. And under the law of war you can never target a civilian for his own sake, even to make him do something. So ironically, they're less discriminate than the use of kinetic gravity bombs, for example. But the hope always was that sanctions would be coercive. Hufbauer's work seems to show that sanction sometimes work, but much slower than people suppose. And usually on interests that states don't hold very dear. But if it's something a state really wants to accomplish, then their ability, capacity, commitment to resisting is quite considerable. So, was there -- Could you argue there was an implicit exhaustion requirement to try sanctions first? I suppose you could make the argument. It doesn't matter. This was a use of force that came about only after twelve -- eleven years of exhaustion, from 1991 onward. And frankly, some at least limited use of force was always part of it. In 1993, the French and the Brits and the Americans together engaged in a small use of force to persuade Saddam that he had to allow the inspectors to have the use of an airfield that they needed for real-time inspections. And in 1998, of course, when Saddam was going to expel the inspectors and keep the Americans out and not allow inspection of the palaces there was the very, very concerted threat to use force in March of '98. There was a drum roll to that effect in August '98, and ultimately there was the use of force in December '98 -- in Operation Desert Fox, when he effectively kicked the inspectors out. So it's never been sanctions only. And I think there's always -- But there's always been the hope that the sanctions would be sufficient. And again, there is a debate, it's true -- about whether its not better practice to always hope for a multilateral -- if I may call it "instantaneous permission" to enforce -- Who's the policeman to enforce a resolution? Would we want Suriname to suddenly announce its invading Iraq to enforce resolution 687? But in this case, it was the US and the Brits and a few other countries that provide the bulk of the fighting force. It was the Allies that in fact had a ground-level ceasefire before it was memorialized in 687. And they are, I think, entitled to rely on the wording of 687, which is a solemn promise. Also if you -- I mean, if one wants to take an entirely -- I admire pacifists and their philosophical commitments. I don't think they're well-grounded in the real world. And if you wanted to be a pure pacifist, you'd have to then have abolished the no-fly zones as well -- North and South. And say, "Whatever happens to the Kurds in the North, and the Shia in the South is Saddam's problem." But clearly the status quo anti was not sustainable forever. We couldn't stay there forever drilling holes in the sky. And the moment we left, it was predicted by one and all that Saddam would again move in and finish off his domestic, political opponents. The other theory that lurks behind that argument is that of humanitarian intervention. Now that is -- There's a wonderful phrase in international law -- "de lege ferenda" -- "lex ferenda" -- law that's becoming, kind of sort norms becoming hard law. It's the continuing tension in the UN Charter between the kind of procedural perfectionism, procedural inclusiveness that you prefer to have and the commitment of the charter itself to certain substantive norms -- one of which is human rights. So in the case of Kosovo, when you had the Security Council diagnosing the problem beforehand, and finding that Slobodan Milosevic was using excessive force in regard to Kosovar Albanians, calling on Belgrade to allow substantial autonomy to Kosovo, but ultimately not wanting to use force, or at least to be the one to authorize force. And then thereafter -- after the invasion, in a certain way ratifying the use of force, because resolution 1244 then said, "We forbid Belgrade from returning to Kosovo," which is not the outcome you would ever have if it was a war of aggression by the Allies. This kind of sandwich, where you have the Council involved beforehand and afterwards, but not the ultimate middle of the sandwich -- the use of force. The countries that were involved with us in Kosovo were in many cases taken to the International Court of Justice by Yugoslavia, by Serbia, suing in the ICJ, the civil world court. And their defense often was humanitarian intervention, that you simply couldn't allow what they thought to be the case -- that Milosevic was going to ethnically cleanse hundreds of thousands of people and kill tens of thousands.

ECHO CHAMBER PROJECT: Let me just interject here and ask a question about where does international law fall within the constraints of the US domestic law? Is the War Powers Act trump that? I've heard from some people that in some countries international law is higher than domestic law. In the United States, is it switched? And if so, how?
WEDGWOOD: Oh, that's a -- [laughs] -- That's a nettlesome, semester-long issue and varies country by country. I said on the UN --
ECHO CHAMBER PROJECT: Just -- In that case, just focus on the United States and is it true that our domestic law in a way -- that international is seen as trumping? Or is just a statute? Or how --
WEDGWOOD: Well -- On the relationship between national law and international law, there are two separate questions. One is "What is the kind of law that you could sue upon in a domestic court?" -- or "that a government official would have to feel himself constrained by in a domestic setting?" And then there's a separate question, "What is the US bound to internationally?" You have the same country, which is in a sense is involved in two different legal systems. It's like being a co-national -- We're involved in the domestic legal system. We're involved in the international legal system. So in many regards, whether something is domestic law doesn't matter. We may still have an international obligation not to do it. And you'll have debates about Presidential versus Congressional power, separation of powers -- "Could the President ever violate customary international law?" The answer's probably "Yes." Some people will say "No." But you in fact change customary law, which is made up from state practice, by pushing the edge of the envelope, which often times requires executive power. Could a country -- "Could a President ever breach a treaty?" People breach treaties all the time, but there are consequences. You could be held to be in delict, a violator, financially responsible in the International Court of Justice, for example. Countries worry that if they behave as a scofflaw-way toward treaties or customary law that, tit-for-tat, they can't then claim the benefit of that same law which protects them. So -- Without being able to go to court about it in a domestic setting, there still are powerful constraints that induce countries to follow international law. But there's a big debate on the content of international law. And one should never suppose, I think, that because a treaty is proposed that the mere fact of its proposal makes it virtuous. I mean, there are bad statutes, bad bills, as well. Congressmen can have bad ideas. So I wouldn't mistake the aspiration of having a kind of Kantian universe -- where we all live in a reciprocal respect -- with any kind of lack of critical judgment about what the content is of a proposed norm.

ECHO CHAMBER PROJECT: Put yourself in a journalist's shoes for a moment. Imagine you're a television journalist, and you're trying to adjudicate the facts in a way -- or investigate this debate that was happening during the build-up to the military intervention in Iraq. There seemed to be a debate that the United States and United Kingdom were saying one thing, and everyone else in the world was saying another thing. Is it possible for journalism to try to step in and say, "We think that this side is right and this side is wrong?"
WEDGWOOD: Well, it depends on what kind of journalism you have in mind. ["En gaje" ???] journalism -- There are different traditions in journalism. American journalism always tries to be quote/unquote "objective and balanced" and "Just the facts, ma'am." The French have a much more passionate style of ["en gage" ???] journalism. So it depends what you're trying to do. I mean, it's hard to make a judgment about what is going is, I think, it's the harder question. A lot of the substance -- and the noise -- in current international law debates come from, I think, substantially different worldviews. Without using any pejorative language or demeaning language, one can say that Europe sees its own role now as fundamentally that of human security, by which they mean various humanitarian issues -- such as child soldiers, or landmines, or ecological issues. It does not see itself as having much of a role as an out-of-area, enforcement policeman for international security. I mean, it was a big debate whether NATO could act out of area. It's taken a lot of discussion -- even on paper -- to get the European Union to agree to a rapid-reaction force. I mean, Europe has been quite inwardly focused for the last fifty years -- Very much involved in the project of constructing Europe. "What does it mean to be a European citizen?" -- The depth of integration -- "What about fiscal security pact?" And yes, the Brits have some commitment to the commonwealth, and the French have a commitment to both West Africa and post-colonial sentimental -- or worse -- ties. But they don't see themselves as acting in Northeast Asia with the Korean Peninsula problem. Or acting in the Taiwan-Chinese confrontation, maybe the Middle East. But they do not see themselves -- except through the Security Council -- as having a fundamental commitment to global security in an old-fashioned, balance-of-power, deterrence, collective security sense. So I think you will get some differences of view depending on how countries see themselves, how their publics see themselves, what they want to do. I'll give you one example. Mid '90s --

ECHO CHAMBER PROJECT: Well, hold on. Hold on.
WEDGWOOD: Yes.
ECHO CHAMBER PROJECT: The scope of my film is going to be looking at Iraq --
WEDGWOOD: Oh. But this is a real parallel -- i.e. Liberia and Sierra Leone are falling apart in the mid '90s with terrible bloody wars. They would love the Council to come in -- the Security Council. Security Council doesn't even want to pass a resolution about it. Why? Because if you pass a resolution, there's a subtle expectation you would act. Europe didn't want to act. So Africa did it on its own with a regional organization. You'll find that if people don't want to be involved in the project, they often tend to oppose the project.

ECHO CHAMBER PROJECT: And there seems to be a politics of realism applied to the UN by -- it sounds like if you've used that term yourself, and even Sean Murphy -- as even if the political situations of any given situation -- specifically with Iraq -- is going to dictate what actual the behavior is of all the different players. And so -- Specifically -- I mean, if you look at the US draft resolution that was leaked to the New York Times, and there's a -- 1441 and it says "and such breach authorizes member states to use all necessary means." They seem to explicitly say, "Okay we're going to authorize individual member states to use all necessary means." And then throughout the process of that debate, it got an ambiguous result such that going back to Article 2, Paragraph 4, it seems that -- of the charter to the UN -- it looks like that the UN was trying to say that only the United Nations Security Council should be enforcing these resolutions, and not any individual member state.
WEDGWOOD: If you look at the debate on 1441, it ended up as a standoff. The French prim rep -- the ambassador in New York -- said, "There is no automaticity to the use of force from this resolution" -- this last chance resolution. The US said, "There's no prejudice to our prior existing rights from this resolution." So neither side got quite what it wanted. But it was made plain to Saddam Hussein that this was the last chance -- This is the dry gulch ultimatum by the sheriff. This is the last chance you have. And on whether that resolution added to previously existing rights to enforce through either unilateral or "Coalitions of the Willing" action, I think the French prim rep said, "It didn't." The US said that, "It certainly didn't degrade their prior existing rights." I've always thought that 687 was the cleaner theory -- ["tut sul" ???] -- that we were trying to be solicitous, and to show that we took the UN seriously. But there's an old lawyers adage -- a trial lawyers' adage -- kind of Irving Younger's Rules for Cross-Examination of a witness, "Don't ask a question if you're not going to like the answer. Or even if you don't know the answer." And -- In NATO relationships in prior escapades, you had always heard the political saw that the French may be resistant, but in the ultimate end they will come on board. And I do think that it was quite a shock to the US to discover that -- I mean, even now -- even when it comes to training police forces for post-war Iraq in country, Jacques Chirac is still not willing to sign on. So the old "Just-in-Time French arrival" rule of the road is dead and buried for the moment. I mean, the council works only as well as the politics in the alliance of its members. And it had its first crisis, as you know, after the Cold War broke out. And the assumption that the big five were going to be pals forever was in disarray. That's when you saw Dean Acheson go to the General Assembly to get a second resolution for Korea to authorize the fight against North Korea. So the Council works as well or as ill as the relationship among the P-5: China, Russia, France, Britain and America. And will we sometimes not take action because we hope for Council concurrence? Absolutely. But push come to shove -- and Kofi Annan said this himself -- He gave a very beautiful speech in September of '99 on legitimacy and intervention -- sovereignty and intervention, in which he put the hypothetical of Rwanda all over again. And said, "If you have some country that was willing to go into Rwanda by itself or with a few friends to prevent the genocide -- interrupt the genocide, even if you could not get a Council resolution, would you have wanted that country to stand back?" He didn't answer his own question, but the answer hanging in the air was "Of course not." So this tension between your preferred procedures, and the rock-bottom necessary result is one that's inherent in the charter, inherent in the imperfection of the post-Cold War political system. But it's not the creation of the US. I mean, the one thing, I think, about "hyperpuissance" -- hyperpower -- which is the favorite French term of ["ah-be-que" ???] is that -- it's a signal simply that World War II is not over. If you look at the relative economic sizes of countries in the world, the two other countries that should be providing major stanchions, major keystone architecture for regional security is Germany and Japan. Japan has had a GDP that's as high as 20% of the world. We have 25 - 27 - 30%. Germany has 8 - 9% - 10 %. It's numbers 2 and 3, Japan and Germany. And yet, for historical reasons, because their neighbors aren't quite comfortable with them yet, they're not quite comfortable with themselves yet, they can't take the role that their economies would otherwise prescribe for them. So this kind of vacuum of power is one that really ironically is still the aftermath of World War II.

ECHO CHAMBER PROJECT: I think -- We've talked to Reed Brody of Human Rights Watch, and he says that you shouldn't consider Iraq a humanitarian intervention, because the legal case was never -- it was never sold to the UN as a humanitarian intervention. No one ever tried to claim that there was an imminent genocide. And no one provided --
WEDGWOOD: What's that? Inocide?
ECHO CHAMBER PROJECT: Genocide --
WEDGWOOD: Oh.
ECHO CHAMBER PROJECT: -- that there was an "imminent genocide" or "ongoing" -- to justify. So when you make analogies to Rwanda to Kosovo, this is different because no one actually tried to argue that there was an imminent genocide that needed to be stopped.
WEDGWOOD: Well, define "imminent genocide." I mean, there's still debates about whether Operation Horseshoe by Slobodan Milosevic was real or imagined. Clearly, Milosevic was willing ultimately in the course of the Kosovo intervention to push over the border more than 500,000 people, into countries that would be destabilized, countries that couldn't handle them -- a kind of demographic engineering project that you haven't seen since World War II and Stalin.

ECHO CHAMBER PROJECT: But in the case of Iraq, though, when you're looking at Iraq as a case study, which is what my film is ultimately looking at Iraq -- looking at it -- Did anyone to your knowledge try to at least provide any evidence or to claim this legally as a humanitarian intervention.
WEDGWOOD: Well again, there's no single forum in which you claim things in the international community, its kind of an ongoing conversation with lots of fora. Clearly, in the Anfal gas campaign in Fallujah, Saddam willingly used weapons of mass destruction to quell the Kurdish villagers. Clearly, Saddam was not happy that with the no-fly zone Kurdistan -- so to say, the Kurdish autonomous -- functionally-autonomous region -- was standing outside of his power wingspan. The moment we withdrew -- if we stopped the no-fly zone -- I don't think anybody would argue that Saddam would've stood pat. He would've been back in there with troops and helicopters and every weapon he chose to use. So define "Genocide." Can you intervene only at the instant it breaks out? I mean, one of the arguments that's given for why we couldn't have intervened in Rwanda -- a colleague of mine at Johns Hopkins has made this argument, I'm not sure I agree with it -- is that the logistical capability to intervene in areas that are not literal areas -- you know, right next to the seaside -- is difficult. It takes time, TPDPs -- "Time-Phased Deployment Programs." It takes quite a while to muster a force that's an effective fighting force, particularly with force protection. So you can't wait until genocide minus one, to get in there if you're going to stop something. If somebody has made it plain to you on repeated occasions that he is determined to just eviscerate variant communities -- as Saddam did after the first Gulf War, when he drained the marshes and killed tens of thousands, if not hundreds of thousands of Marsh Shia, and his campaign against the Kurds with helicopters after the first Gulf War, when we foolishly let him go up there with helicopters. There is no doubt in my mind -- and I don't think would be in Reed's mind -- that his ultimate intention was not to form a consociational, pluralist dictatorship, but rather to crush these communities. So you can't wait until the moment of launch of a genocide to go in. The fact that you didn't make the argument in a particular forum -- This is a norm that's evolving. Indeed, people are wary of the norm, because "Could any neighbor invade any other neighbor?" People have both good and bad feelings about Vietnam invading Cambodia. It displaced Pol Pot, but it brought you a Vietnam Communist Regime. Tanzania into Uganda. India into Bangladesh into East Pakistan. There's been instances where what could be styled as "humanitarian intervention" has also been disputed. So it's a norm that people feel a moral attraction to, but also want to keep in a box. So it's not used fecklessly in inappropriate circumstances. But it is one, frankly, in Europe with an agenda of human security -- a human rights agenda -- and here too -- that people feel some commitment toward. You'll find former -- people who were formally very skeptical of the use of force, like David Rieff, who's a writer for the New Yorker, or William Shawcross, who was a huge critic of our Cambodia bombing, who are now liberal hawks, who say, "You have a -- not just a right, but a duty to intervene to prevent gross human rights violations." And nobody can argue that Saddam was not that.

ECHO CHAMBER PROJECT: I think that's clear. But when we look at the case that we look -- that was presented to the UN, the US legal theory was very complex, it was implicit and not explicit, and the majority of the international community -- not just France, but the General Assembly, but also the United Nations Security Council -- was clearly against a wholesale invasion to topple the government of Saddam, which is not within the proportionality of enforcing the constraints set forth in 687. So it seems like there's a lot of issues that were coming up about this legal argument.
WEDGWOOD: You're mixing up a lot of things in your question -- "Clearly against disproportionate" -- I mean, there's a rule in international that the means you should be proportionate to the military mission that you have put forward to accomplish.
ECHO CHAMBER PROJECT: Right. And the point is that toppling the government of Saddam Hussein is disproportionate to the provisions set forth in 687.
WEDGWOOD: "Disproportionate?" Well, if you've tried for twelve years to persuade Saddam Hussein to abide by 687. If you've tried to coerce him to abide by 687. If he's cheating hand-over-fist on the sanctions, which was clear ever before Oil-for-Food blew up -- everybody knew he was smuggling oil through Turkey, and through Iran, and through Jordan, and harvesting at least several billion dollars a year. If you have no other method of coercion, "Are you ultimately permitted to coerce a regime?" -- "Are you allowed to complete the first Gulf War, essentially?" Is it toppling a regime? Or is it enforcing a mandate? They sometimes are the same thing. In the case of Noriega, for example, when he stole the election -- OES certified that he did -- Was it right or wrong to go in? You can debate about it. But it was clear that Noriega was never going to conduct himself in a more composed democratic fashion.

ECHO CHAMBER PROJECT: If you look at the debates that were around 678 and 687 -- and 686 even -- the debates of the international norm was that "This does not" -- They used explicit language --
WEDGWOOD: -- "They," "They," "The" --
ECHO CHAMBER PROJECT: -- The United Nations
WEDGWOOD: "The United Nations" --
ECHO CHAMBER PROJECT: -- The United Nations Security Council --
WEDGWOOD: There are fifteen countries on the United Nations Security Council --
ECHO CHAMBER PROJECT: Yeah, but they -- In 687 [sic], they voted on it. And they used explicit language to continue the authorization of force. They didn't do that in 687. They could have. They knew very well how to do it, and they didn't.
WEDGWOOD: "They knew very well how to do it" --
ECHO CHAMBER PROJECT: -- the United Nations Security knew how --
WEDGWOOD: 678 was an authorization for the use -- I mean, I don't want to sit here doing a ["ray-direct-shon de text" ???] like tenth grade French class by choosing Council Resolutions. 678 was an authorization for the use of force --
ECHO CHAMBER PROJECT: -- To dispel Iraq out of Kuwait. Not to --
WEDGWOOD: And to restore -- And to restore peace --
ECHO CHAMBER PROJECT: "Restore" but not "establish" --
WEDGWOOD: Oh, gee whiz. You have not been to law school for quite long enough yet, my friend.
ECHO CHAMBER PROJECT: This is the words of Sean Murphy --
WEDGWOOD: Well, I like and I respect Sean, but lawyers can also have different points of view.
ECHO CHAMBER PROJECT: But "all subsequent resolutions" -- Did that go from 660 to 1441? Or 660 to 687?
WEDGWOOD: Did what go?
ECHO CHAMBER PROJECT: The authorization to enforce -- the language is "use all necessary means to enforce 660 and all subsequent relevant resolutions."
WEDGWOOD: Is 687 relevant?
ECHO CHAMBER PROJECT: Well, the issue is --
WEDGWOOD: Is it subsequent?
ECHO CHAMBER PROJECT: That's the point. It was -- Is 687 --
WEDGWOOD: Seems to me both subsequent and relevant.
ECHO CHAMBER PROJECT: What about 1441?
WEDGWOOD: What about it?
ECHO CHAMBER PROJECT: It that? If you look at the preamble of 678, it seems that "the subsequent, relevant resolutions" are pointing to those resolutions in the preamble. Not necessarily a resolution -- It goes to --
WEDGWOOD: This is going to be absolutely incomprehensible to your viewing public. They do not have the texts of these things before you. All I can say to make it clean and plain is that the expectation was, in March of 1991 that Saddam would promptly comply with the conditions of 687. It was fresh then. I mean, it's true there is in international law, as in contract law -- normal life, an idea of "desuetude." If you had -- If you and I had a business partnership, and you walked away from it or I walked away from it, and I waited thirty-five years, and then I came back at you and said, "What about that candy store you promised to establish with me." That if you sit on your rights for too long, something can become stale. I mean, if you had an antique, ancient resolution from 1963 that you had never acted upon, you had never freshened, you had never referred to, then "Can you suddenly 40 years later invoke it?" I would be skeptical. I'd give advice against it. But this has been the major -- one of the few major, ongoing projects of the council --continually for the last twelve years. It was not anything was not antique, forgotten, fallen into disrepute, disarray, desuetude. It was a live and active project. It had seen three directors. It had seen Rolf Ekeus. It had seen Richard Butler. It had seen Kofi Annan's mission to Baghdad in March of 1998 where Saddam Hussein wouldn't even see him. Why should a head of state bother to see the head of the United Nations? Kofi Annan had graciously said, "I think I can do business with this man," had entered into a memorandum of understanding, which Saddam promptly disregarded. People had so exhaustively explored avenues of good faith that there was nothing left to explore. I mean, one could argue "Why did we invade in 2002 instead of 1998?" That's a fair argument. I think in December of 1998, it was rather sad that all that the allies mustered was a symbolic pin-prick gesture that did not take Iraq take this seriously. And then Iraq had four years to regroup, when we didn't know what was happening -- made the war much more dangerous for the allies -- that the whole period when one didn't know what they were doing. And 2002, in every -- I'm sorry 2003 -- but the debate that began in 2002 culminating in March 2003, was really the last chance, I think, to make good on 687. And yes, there are voices in Washington here, for example my friend Jessica Mathews at Carnegie, who say, "Why couldn't you have continued a regime of coercive inspections?" Put a hundred thousand troops at the four corners of Iraq, and if they don't let you into a particular building, then you go in and you pulverize that building. A couple of problems with that. Number one is that at the time, I think, the hope was we wouldn't have to stay in the region that long. Number two, the lesson of peacekeeping is you can't mix peace enforcement, robust action, and a more pacific action. Milosevic took hostages willy-nilly in Serbia. Saddam had taken hostages in the first Gulf War. So you couldn't expose people to have them go back and do a "Yes, please. May I mother?" inspection of buildings at the same time you were bombing the regime. And everybody, I think, soup to nuts, left to right, concedes that Saddam was not going to move except in the face of actual military power. He was not offering to open up the palaces until we flowed troops into the region.

ECHO CHAMBER PROJECT: Michael O'Hanlon said that you would need about seventy-five thousand troops to -- you know, it's not a hard and fast number -- but approximately seventy-five thousand troops to enforce persuasive compliance with the resolutions. But it --
WEDGWOOD: How does he make that judgment?
ECHO CHAMBER PROJECT: I mean, he didn't -- But -- There is a threshold --
WEDGWOOD: Shinseki's half a million or O'Hanlon's seventy-five thousand?
ECHO CHAMBER PROJECT: I mean -- But, it seems like -- There seems a point where the --
WEDGWOOD: There's air power, and there's ground power --
ECHO CHAMBER PROJECT: -- Where the United States military and the US media saw the force that was there originally intended to enforce compliance. But eventually that turned into a force for invasion. There's a perception shift there. So -- And you've said even in your articles, "You can't leave the troops there forever." Why not?
WEDGWOOD: You can't leave them forever. I, as everyone else, is as unhappily educated as to how long we're having to leave them there now. But to be sure, ex-anti, I think the hope was you could topple the regime, get a replacement and get out quicker than we have. I mean, one of the problems looking at it before the invasion, was that Kim Jong-il, who is nobody's Sigma Chi sweetheart, was pretty clearly using the occasion of our being tied down in Iraq as a nice opportunity to just disregard the NPT, and to break open the seals on his fuel rods, and tell the IAEA -- the International Atomic Energy Agency -- to take a hike. And the concern is if you're tied down in one place, it gives great opportunities for folks in other places. I mean, to my mind -- And I didn't -- I -- You should've talked to me in 1991 or '92 -- I was an absolute solid, Democratic liberal, who became somewhat disappointed by UN failures to perform in Bosnia, Rwanda, elsewhere. But to my mind, this is not a Cold War project. This is not a right-left project. This is a project about giving credence to UN Security Council resolutions. And yes, anybody who spent any time in New York -- and everybody who writes about the UN should spend time there -- it's not done by deductive logic. I mean, the politics are thick and furious. And you hope for a good outcome. You hope for some kind of balancing of partialities. That's why you have a collective organ in the first place. And you want to keep disputes from escalating in dangerous ways. But don't watch sausage being made. Military guys used to come to me in the days of Rwanda, Bosnia, elsewhere and I would be doing a little teaching here and there and say, "We shouldn't have to have an unclear mandate in countries." Militaries from every countries would say that -- "We hate these mandates that are unclear." And I would say, "Learn to live with it. The Council's always going to give you a muddle."

ECHO CHAMBER PROJECT: Did the US have explicit authorization to act as an individual member state to enforce these resolutions?
WEDGWOOD: Explicit authorization from whom?
ECHO CHAMBER PROJECT: From the United Nations Security Council.
WEDGWOOD: You're going to have to go to a lawyer, and get your -- and harvest opinions. In my view, it was a reasonable action to say that the 687 conditions were security conditions -- just like borders are security conditions -- that you're entitled to rely upon -- that come to have an objective circumstance. And if someone invades my country, I don't have to ask the permission of Iceland to respond to it. And so too, if I -- I mean, would you dispute that if Kuwait was invaded again, Kuwait could respond? If Saddam --
ECHO CHAMBER PROJECT: That's Article 51, though. This is a little bit different.
WEDGWOOD: Well, no. Article 51 talks about armed attacks --
ECHO CHAMBER PROJECT: Right. So if they are armed attacked by Iraq they have the right to respond. That's different that what we did, which was we weren't attacked by Iraq. We never submitted to under the Article 51 obligations to say that --
WEDGWOOD: There's another -- There's another large -- There's a --
ECHO CHAMBER PROJECT: -- We did it under United Nations Security Council resolutions. And when you hold it up, the normative standard of the international community seemed to be saying that "We do not buy your legal argument." That's what France --
WEDGWOOD: "The normative standard of the international community?"
ECHO CHAMBER PROJECT: Right. This is outside of the normative -- you know, the normative operations of the United Nations. This is outside of that. Would you say that this is normal operations to say that we have --
WEDGWOOD: There's no Charlie McCarthy at the UN who speaks for the United Nations. You have countries taking positions. The countries that went with us into Iraq and the second Gulf War clearly thought they were under sufficient legal umbrella to do so. People differed on it. People do have sincere and passionate points of view. It's true. I happened to be in London during the Million Mum March, and I was trying to get a concert on the South Bank and I had to get across the parade of the Million Mums. And they weren't all Trotskyites. There were a lot of middle class folks there. I indeed understand the depth of feeling that Britain had about that. One thing that some people explained to me is that if you live in a country that formally was colonial -- as England, as France -- and that had to give up its empire out of sheer fatigue, because after World War II Europe was exhausted. So that the Brits got out of India and out of Cypress and a bunch of other places much faster than they probably should have, leaving these countries in a lurch. But that to them Iraq, I think, may have seen the reopening of the kind of burden that they hoped to be rid of while they were busy building Europe. But you can't -- Don't be so naïve as to suppose that people reason about the law only in some kind of Aristotelian, deductive way. Oliver Wendell Holmes is famous for having said, "The life of the law is experience, not logic." And reasons that countries vote against things depend on how they see their own role, what they want to have happen. I would not be so cynical as to suppose -- expect maybe I might -- that countries commercial ties can influence their votes. Who they're friends with influence their votes. Some subjects never come up at the UN. Kashmir almost never comes up. Why? India is a big power at the UN. Chechnya never comes up. Tibet never comes up. The choice of topics and what you do about them is often intensely political. Israel comes up every time, because like the old Tom Lehrer song, that wonderful MIT mathematician, it seems to be everybody's favorite "Kick the Can." -- Kick the Zionist entity. It's the one hatred that many countries seem to be able to agree upon. So Israel always tops the list. Don't suppose this is some clinical exercise. Some of the organs you have the deepest aspirations for, the UN Human Rights Commission, ending up being vulgar, World Wrestling Federation, mud-throwing matches on who is named and who is not. The 1503 Committee -- to name who's guilty of systematic and gross violations tends to attract the bad boys, because they want to filter which countries are going to be named. If you go in there with your UNICEF milk carton to collect coins, and think that's the way you can play the game -- the ethical game at the UN, you will be quickly disabused.

ECHO CHAMBER PROJECT: From your standpoint, I've been running into a lot of brick walls of people saying international law is not important. Why are you doing this? Why are you focusing on these angles? What would your response be to those people -- or people -- Why is international law important?
WEDGWOOD: Well, I guess my métier, if you will, is a kind of realist international law is to say to the international lawyers, "Don't craft a regime that is so aspirational, so romantic, so naïve, that you make rules or norms or procedures that no one can live by. Remember the Holocaust. Remember every other terrible event of recent world history, and understand that the object is to prevent these things, not simply to have a kind of procedural perfectionism." So I guess my preachment to my international lawyer friends is "If people aren't listening to you, figure out why." Is it because you have nothing that they can use? I mean, a good lawyer wants to help the client do what's right. And a good lawyer will often preach to the client, but will also try to help the client do it in the right way. But to the folks who are pure realpolitik -- "No, of course, we have an interest in maintaining a structure of law." I spend now nine weeks a year of my life at no pay on the UN Human Rights Committee. And what we do is engage with country delegations to argue with them about how they've implemented the covenant on civil and political rights -- to give it meat, and to say, "Look, female genital mutilation in Central African Republic is not easily consistent with the rights of equality under Article 26." It's somewhat political, somewhat legal. It's very engaged. It's very immediate. It may have limited efficacy, but its gives reformist elements in those countries something to take home to their capitals with which to argue for domestic change. And so "Do I think it's stuff worth doing?" You betcha. The US throughout most of its history has been a neutral country, a smaller country, deeply interested in maritime rights -- the right to trade on the high seas. And we've always argued for a thick regime of international law. But I do think that as international law gets more ambitious, where it's trying to enter areas it's never entered before. It's coming up against some brick walls. One is the problem of federalism -- that in fact, most countries that have federalist structures, like Australia, Canada, US, Germany, others, can't force their states to take certain actions. They're sub-national entities. So there's actually, ironically, a kind of, at the moment, a kind of Einsteinian-limit on how much compliance can be compelled by the national capital. And if you try to take over all of domestic governance with international norms, you get some understandable resistance that people like to do it their way, that there should be some margin for local taste -- not grotesque things, but what the Europeans call "a margin of appreciation." You may come to understand that the rest of world doesn't want to be as deeply integrated as Europe is. When it comes to war and peace and norms about how and when you use force, I just -- I would remind people of World War II, and where the phrase "United Nations" first came from. It was not the building. It was not the charter. It was the anti-fascist alliance. And it was a moniker that was invoked by Roosevelt to urge his allies not to seek a separate peace. And the premise was that you would have to have an effective collective security arrangement. Now the one -- I think the one fallacy that lawyers can fall into, is the old high school logic teacher post hoc prompter hoc. It happened after something, so it was caused by something. You have simultaneously had the security promises of Chapter 7 of the UN Charter coexisting alongside of balance-of-power politics, nuclear deterrence, mutually-assured destructive capability -- all the things that more or less maintain stability in the Cold War. One can't assume it was the Security Council alone with its law that was what kept the international system more or less in check. And I think international lawyers can't fall into the logical fallacy of supposing that it has been only the law that has done all this. At the same time as they should recognize and salute and cultivate the constructivist norms that make countries want to be seen as legitimate actors.