Department of Political Science
December 7, 2003 (12)
This article was published in "The
This is a more fully footnoted version of that article, with direct links to many of the sources cited.
In January 1963, Konrad Adenauer,
the chancellor of the Federal Republic of Germany, came to
The Americans were enraged by
Kennedy had made the same point a
few months earlier in a meeting with the famous writer André Malraux, French
minister of culture and a de Gaulle confidant. “A
In January 2003, another German
chancellor, Gerhard Schröder, met in
For months, it had been clear
This was the policy that first
The French position at that time
was more ambiguous. In September 2002,
it seemed that the French government might be willing eventually to approve the
use of force if
A resolution was adopted and the
Iraqis allowed the UN inspectors, who had left in 1998, to come back in. But as Chirac himself would admit,
Their efforts focused on the U.N.
Security Council. The basic tactic was
to insist that the use of force against
It was clear that what was at
stake was of absolutely fundamental importance.
For the German foreign minister, Joschka Fischer, what was at issue was
nothing less than the “question of a new world order after the end of the Cold
War.” And many Europeans opposed the idea of an
American-dominated world order—an order which they saw as based on brute force
and on the will of a single extraordinarily powerful country. In their view—and
one comes across countless articles in the European, and especially the French,
press based on premises of this sort—America was a lawless state, an arrogant,
overbearing, presumptuous power, a country that no longer felt any obligation
to play by the rules, a country that relied on brute force to get what it
wanted. And in this view, Europe, in
standing up to
On the surface, the crisis seemed
to blow over fairly quickly.
My basic premise here is that
this is not a healthy way of dealing with the issue. I think that some basic questions that
emerged during the crisis need to be discussed openly and seriously. So instead of focusing on the question of how
There is no question, in my mind
at any rate, that the weapons of mass destruction issue—not so much what the
Iraqis actually had, but what they were in all probability going to have if no
action were taken—lay at the heart of the
But would it have mattered all
that much if
In the United States, the most
serious criticism of U.S. policy in the crisis turned on this one absolutely
fundamental point: that is, on the
argument that nuclear weapons cannot be used for coercive purposes—on the idea
that in a conflict neither the Iraqis nor their adversaries would have dared to
use their nuclear weapons against each other.
Indeed, the claim is that they would not even have dared to use
non-nuclear forces in a major way. The
use of force would have been too risky, given the nature of the weaponry both
sides had. If
A number of leading American
international relations scholars argue along these lines, but I think they’re
And why is it less than
absolute? Suppose the Iraqis developed a
nuclear arsenal and adopted a coercive strategy of the sort I just described,
and suppose the
All of this may sound somewhat
speculative, but it is important to note that the
The same sort of concern (but
focusing on the threat posed by biological and not nuclear weapons) surfaced
during the Gulf Crisis in 1990. The CIA
at that time warned that it could not “rule out that
So the problems an Iraqi nuclear capability would have posed were very real, especially in a world where large-scale terrorism was a fact of life.
prevailing view in the
But does that view really stand
up to analysis? If the use of force
were ruled out (as the Germans, for example, wanted), why would the Iraqis have
complied with an effective inspection regime?
And how could inspections have provided any effective guarantee that
During the crisis, problems of
this sort—the problems related to the forcible disarmament of
So the issue was not dealt with
seriously by either side, and the American government, in particular, did not
handle this question very skilfully. But the fact that it did not make its case
very effectively did not prevent many Americans close to these issues from
sensing the problems with the notion that one could deal with the situation by
reestablishing an inspection regime. For
one thing, they viewed it as odd, to say the least, that the French, who had
done their best to weaken the control regime in the 1990s, were now presenting
themselves as the champions of inspections. And in
One of the most serious charges
leveled against the
But now it seemed that the Bush
administration was determined to take whatever measures it felt were needed to
deal with developments which in its view threatened American security whether
those measures were lawful or not. The
American policy toward
So the real issue here has to do with that basic claim—that is, with the question of the legitimacy under international law of “anticipatory self-defense.” And it is important to note that the prevailing, although by no means universal, view among even American students of international law is that the Bush administration view is legally untenable, and that under international law, at least as it has existed since 1945, the right of self-defense is very narrowly circumscribed. According to Article 2, paragraph 4, of the U.N. Charter, all member states are to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations.” Under the Charter, the U.N. Security Council would alone have the right to authorize the use of force. The one exception, provided for in Article 51 of the Charter, was that states would still have the right, both individually and collectively, to defend themselves against armed attack, pending Security Council action. But that right applied only to the case of actual attack, and not, for example, to a case where attack was merely threatened. The scope for unilateral action was thus evidently very narrow; and with the one exception relating to an actual armed attack, the unilateral use of force, the argument runs, was now legally impermissible, even when what a country honestly saw as its “vital interests” were threatened. A “presumption against self-help,” it is said, lay at the heart of the U.N. system. According to that interpretation, there was in fact not much that a state could do without Security Council sanction, unless it or one of its allies had actually been attacked. “With the right of self-defence in Art. 51 restricted to the case of armed attack,” one scholar writes, “and with no further exception to Art. 2(4) allowing for the use of force by the individual State, the exercise of force for the enforcement of a vested right or for the purpose of ending another State’s unlawful behaviour is prohibited.” Even reprisals were legally permissible only if they did “not involve the use of armed force.”
What is to be made of this whole
line of argument? To get at that
question, we first have to deal with a more fundamental issue: what gives a certain principle, like the idea
that military reprisals are impermissible, the force of law? How do we know that such a principle is
legally binding? And those questions in
turn are closely related to the general question of how international law is
made, since no given principle is legally binding unless it is produced by a
process that gives it the force of law.
The law, after all, is not just sitting around someplace waiting to be
discovered. It has to be created—and
created by a process that gives people the sense that the principles that take
shape are legally binding. But created
by whom? Legal scholars, obviously, do
not have the right to actually make the law;
the principles they put forward are not legally binding simply because
they say they are. And there is no world
parliament, no supra-national body with recognized legislative power. Even the
U.N. General Assembly does not have the authority under the U.N.’s own Charter
to actually make law. Nor does the
How then is international law actually made? The only really plausible answer is that the law is made by the states themselves. “Governments derive their just powers from the consent of the governed,” and in this case, it is the states who are the governed, and it is they themselves who in one way or another decide on the principles they are to be governed by. It is not as though the governments of the world have had the basic principles of international law handed down to them. It is the states themselves who establish international law, by accepting in practice various principles that constrain their behavior, and especially by agreeing to treaties that define what those principles are. “International law,” as the famous legal scholar Lasso Oppenheim pointed out long ago, “is a law not above but between states.” As a result, the community of states has to accept a given principle as law for that principle to be legally binding. Some scholars go even further. “Each nation,” Hans Morgenthau, for example, says, “is bound only by those rules of international law to which it has consented.” And this is not just a view which only the most hardened realist theorists hold. Even someone like Louis Henkin, whose thinking was by no means rooted in the realist tradition, made essentially the same point. “In principle,” he wrote, “new law, at least, cannot be imposed on any state; even old law cannot survive if enough states, or a few powerful and influential ones, reject it.”
It is in this context that the basic texts—above all, the U.N. Charter—that define the international legal order need to be interpreted. If the Charter is to be taken seriously, the governments that drafted it would have had to be serious about bringing a new legal regime into being. It follows that to see what new law was really being created, one has to understand what new obligations governments at the time thought they were taking on. When they agreed to the Charter, what did the founders of the United Nations think they were doing? What sorts of constraints—that is, new constraints—did they think the U.N. Charter would impose on their future behavior? Did they really believe that the use of force, unless it was explicitly authorized by the Security Council, would no longer be legally permissible, except in the event a state was responding to an actual armed attack on itself or an ally?
The only way to get at the
answers is to look at the historical evidence—that is, to look at evidence that
throws some real light on the question of what the governments understood the
Charter to mean when that document was first hammered out. And to understand what they had in mind, it
is important not just to look at the record of what was said publicly in the
formal discussions at the conferences at which the Charter was drafted. If the goal is to understand how people
really felt—and not just to understand the line governments were taking in
public—it is obviously essential to look at sources that were secret at the
time—the records, for example, of key meetings in which responsible officials
expressed their views. And the most important readily available
source of this sort—most important, because the
What the evidence in that volume
shows is that the
Administration representatives saw things much the same way. Leo Pasvolsky, a key State Department official concerned with U.N. matters, also thought that under the Charter as it was being drafted, “if the Security Council fails to agree on an act, then the member state reserves the right to act for the maintenance of peace, justice, etc.” “There was certainly no statement in the text” being drafted, he said, “under which we would give up our right of independent action.” This was not a trivial point. The British, in fact, as Pasvolsky pointed out, had been “shocked” by how expansive the “American concept of self-defense was.”
Indeed, Vandenberg himself had been
shocked. He did not dispute the
Dulles-Pasvolsky interpretation. But
people, he said, “would be disillusioned beyond words” when they came to see
what the plan was. He had thought that
there had been “a general renunciation of the right to use force,” but this
too, he was told by Senator Connally, the most important Democrat in the
delegation, “was not the case.” To be sure, the wording was not as explicit
as it might have been, but that was only because it was felt that more explicit
phrasing might give the Russians too free a hand, not because the Americans
were prepared to accept real limitations on their own freedom of action—above
all, in the western hemisphere, an area when they claimed “preclusive
rights.” As Connally put it in this
The U.N. system, moreover, was built on the assumption that the major powers would be able to act as a bloc. States might be asked to forgo the right of self-help if the larger community was able and willing to come to their aid; but if the system did not provide for their security, and if the system did not protect their rights, they could hardly be expected to abide by the rules against self-help. This rather obvious point has been made by a number of distinguished legal theorists. “It is reasonable to restrict self-help against violations of the law,” Hans Kelsen wrote, “only insofar as self-help is replaced by effective collective security.” And Julius Stone took it for granted that it did not make sense to rule out forceful self-help by individual states when the Security Council is unable to work as a bloc and no “effective collective measures are available for the remedy of just grievances.” But what is important to note here is that this point was recognized even in 1945. The Americans took it for granted that if the U.N. system failed, the right of self-help would revert to the member states. And the official British commentary on the Charter noted that “the successful working of the United Nations depends on the preservation of the unanimity of the Great Powers,” that “if this unanimity is seriously undermined no provision of the Charter is likely to be of much avail,” and that “in such a case the Members will resume their liberty of action.” Such documents show what was in the minds of the governments at the time; they show that they had by no means set out to build the sort of legal structure most international law scholars today assume had been brought into being in 1945. They by no means thought that the use of force without Security Council sanction and for purposes other than defense against actual armed attack would be legally impermissible no matter how divided the great powers were—no matter how poorly, that is, the Security Council regime functioned. The states, that is, never intended to create a legal regime that would tie their hands too tightly, a regime that would be binding no matter how poorly the U.N. system worked.
But the law is defined not simply
by the intent of the drafters. It is
also to be interpreted in the light of, and indeed as a product of, subsequent
state behavior. And the key point to
note here is that not one of the leading powers—not one of the five permanent
members of the Security Council—was prepared in practice to limit its use of
force in the way the Charter seemed to imply.
The examples are too well known to need repeating here, but let me talk
about two cases,
I bring these examples up not because I want to point to French or Russian hypocrisy in this area. Hypocrisy of this sort is perfectly normal in international politics and needs to be taken in stride. The real point has to do with the light such examples shed on the question of what international law actually is. The international legal regime is created by states, not by judges or legal scholars. But all the major states were prepared to use force without U.N. sanction for purposes other than self-defense, narrowly defined. It is scarcely conceivable that they would have created and sustained a legal regime that would have made them all into law-breakers.
It follows that the argument that
the Americans acted “illegally” because force was used without explicit U.N.
Security Council authorization is to be taken with a grain of salt. Indeed, it seems quite clear that that
argument has to be interpreted in political terms. A legal framework no one ever took too
seriously in the past is now taken very seriously indeed—and from the U.S.
point of view, this can only be because it serves the purposes of those hostile
to U.S. policy, those who seek to use whatever instrument is at hand for
bringing American power under some sort of control. By pushing a particular theory of
international law, the goal, it seemed, was to limit
But perhaps this is going too far. Governments may be cynical, but there is a serious case to be made by those who believe in the sort of legal regime they associate with the U.N. Charter at least as an ideal that we should try to move toward, and that case has to be examined on its own terms.
There are fundamental issues here that we need to try to grapple with. One of the most fundamental is the question of whether we really want a world in which force could be legitimately used only in response to armed attack. And the answer here is not as obvious as one might think. To rule out the use of force except in the case of armed aggression is to allow states to renege on their obligations with relative impunity. Does it make sense, for example, to have a legal system in which states in effect have the right to give shelter and support to terrorists? Does it make sense to set up a legal order that shields the law-breaker (as long as his actions do not amount to an “armed attack”) and requires law-abiding states “to submit indefinitely to admitted and persistent violations of rights”? Is that what we mean by the “rule of law”?
There is a basic problem with the idea that we should try to outlaw the use of force except in response to armed attack. The problem is not just that it is out of touch with political reality. A more fundamental problem arises from that fact that armed conflict does not, as a general rule, result from a simple decision on the part of an aggressor to start a war. It is the outcome, generally speaking, of a political process, one that often takes many years to run its course. It is that process as a whole that needs to be controlled; it is a mistake to focus excessively on just one point in that process, the point at which the decision to use force is made. To concentrate all our legal firepower on that one point is to opt in effect for a rather unsophisticated who-fired-the-first-shot approach to the problem of war causation. It is overall policy, and not just policy at one key moment, that we should seek to influence; it is overall policy that we should therefore seek to judge; the principles we develop, the norms we come up with, should thus relate to policy as a whole. And it is by no means obvious (as the case of the 1930s shows) that policies that rule out the use of force will lead to a more stable international order. For if the goal is to influence the way an international conflict runs its course—that is, to try to make sure that it runs its course in such a way that the conflict is ultimately resolved peacefully—then it may be entirely proper, and indeed necessary, that power be brought to bear. Everything depends on circumstances. That approach, as Michael Walzer points out, “opens a broad path for human judgment—which it is, no doubt, the purpose of the legalist paradigm to narrow or block altogether.” But that fact is reason in itself to be wary of the legalist approach to these issues.
If power plays a central role in international politics—and in certain key areas of conflict, power is still clearly of fundamental importance—then the last thing that we should want is to give people the sense that they can ignore power realities with impunity—that they are sheltered by legal norms from retaliation and that they are free to act as irresponsibly as they like. We should want people to face up to realities, to accommodate to basic realities, and in that way to bring about a relatively stable international order.
For the really fundamental point to note here is that a world in which power considerations loom large is not a world of endless violence and destruction. A world based on power, in fact, has a certain stability: as the international relations theorists say, there can be “order without an orderer.” If international politics during the Cold War period was relatively stable, especially after 1963, it was not because the international legal system established in 1945 had taken the edge off of interstate violence. It is simply a mistake to assume that “UN Charter norms” actually “served as the framework of international relations for the past half century.” The U.N. regime, in fact, counted for very little. Key elements of the international system during that period—for example, the strategy of deterrence based on the threat of retaliation on an absolutely massive scale—were in fact wildly at variance with the international legal framework as the lawyers commonly portray it. “The lawyers,” as Walzer says, “have constructed a paper world, which fails at crucial points to correspond to the world the rest of us still live in,” and one has to wonder whether that enterprise has done more harm than good.
When people today embrace those
legalist conceptions, that position is bound to have major political
implications. The prominence of those
legal arguments in the political discourse relating to the
The showdown with
Some people say that what we saw
in the run-up to the war with
Let me give a couple of examples
of this, each involving Deputy Secretary of Defense Paul Wolfowitz. The first has to do with an interview he gave
on May 9, 2003, which served as one of the bases for a story called “Bush’s
Brain Trust” published in the July 2003 issue of Vanity Fair; the story
itself was released on May 29. According
to that article, “Wolfowitz admitted that from the outset, contrary to so many
claims from the White House,
Many Americans, in other words,
had the sense that there was a certain tendency in Europe in general, and
What does all this mean about the
future of the western alliance? Many
people think that it does not mean all that much—that these problems will blow
over as other problems have in the past and that the NATO alliance will remain
intact. And it is certainly true that
very few people in the
The US government, moreover, no matter how it feels about France and
Germany, is still reluctant (as I write this in June 2004) to even talk about
withdrawing from the alliance for fear of embarrassing those European
governments who, defying political feeling at home, sided with America in the
crisis. The Bush administration does not
want to betray the governments who took that position. And beyond that, a whole series of
considerations having to do with the unhappy course that events in
But still one has to wonder about
the future of the alliance. If even the
Kennedy administration, at the height of the Cold War, was prepared to withdraw
from Europe during the 1963 crisis, why would a less cosmopolitan US government
remain involved indefinitely—when (from the American point of view) the
provocation is far greater than it was in the time of de Gaulle and Adenauer,
when the need to stay in Europe has receded with the collapse of the Soviet
Union and the end of the Cold War, and when the United States is seen as
getting so little benefit from its continuing commitment to the security of
Europe? The Kennedy administration felt
the Europeans could not have it both ways—they could not pursue an
anti-American policy (very mild by today’s standards) and still expect to have
their security rest ultimately on a system based on American power. It is not hard to imagine that if attitudes
remain as they are, the
And one does sense below the
surface of political discourse a certain lingering resentment toward the two
most important continental allies. One
is struck, for example, by Kenneth Pollack’s reference, in an important article
he published in the Atlantic Monthly in early 2004, to the “shameful
If it turns out that the Atlantic
alliance is no longer viable, then that fact will have to be faced
philosophically. Lord Salisbury, perhaps
the greatest diplomatist of the late nineteenth century, once said that the
“commonest error in politics is sticking to the carcasses of dead
policies.” The policy of maintaining the
NATO alliance may indeed be a dying, if not yet a totally dead, policy, and if
it is, it is important to begin thinking about the sort of successor regime
that should be established and how the transition to that new regime should be
managed. But whether the western
alliance is to be saved or replaced by something else, the very fundamental issues
That analysis has to begin, I think, with the recognition that the core questions here have no easy or obvious answers—with the recognition, as Bernard Brodie put it when he was referring to the complex of problems relating to nuclear weapons, that we are now dealing with issues of “great intellectual difficulty, as well as other kinds of difficulty.” I personally have been studying international politics for over forty years now, and the whole set of problems relating to terrorism, nuclear proliferation, biological weapons, and so on, I find extremely difficult—harder to answer, harder even to deal with, than any other set of issues relating to international politics that I have ever encountered, including the nuclear issue as we understood it during the Cold War.
In fact, the main point I am
trying to make in this article is that the questions that we now have to deal
with are extraordinarily difficult, and the answers are not nearly as obvious
as people think. And if we are to get a
sense for how difficult these issues are, it seems to me that some historical
perspective might be of real value. We
often hear people today, for example, talking about American imperialism and
about NATO as an “instrument of American domination.” But it would help, I think, if people
remembered that the
The Americans, of course, have a
lot of thinking of their own to do—and that applies to Americans on both sides
In 1963, President Kennedy said
Sooner or later, the Europeans
are probably going to have to deal with the issue of whether they would really
Looking back on the run-up to the
Iraq war, one cannot help but be struck by the shallowness of the
discussion—not just in Europe, but in the United States as well. And my assumption here is that this was a big
part of the problem—that the reason why the Iraq affair took the course it did,
and the reason why US-European relations took the course they did, had a good
deal to do with the way the fundamental issues were dealt with. The issues were discussed at much too
superficial a level; the core issues
were not argued out, with the result that in the end no real meeting of the
minds was possible. But that does not
mean that we cannot do better in the future.
The issues that came up during the
 Press conference of January 14, 1963, in Charles de Gaulle, Discours and Messages (Paris: Plon, 1986), vol. 4, p. 69.
 Notes on Remarks by President Kennedy before the National Security Council, January 22, 1963, U.S. Department of State, Foreign Relations of the United States [FRUS], 1961-1963 series, vol. 13, p. 486.
 Kennedy-Malraux meeting, May 11, 1962, FRUS 1961-1963, vol. 13, p. 696.
 NSC Executive Committee meeting, January 25, 1963, ibid., p. 490.
 Ibid., p. 489.
 NSC Executive Committee meeting, February 5, 1963, ibid., p. 178.
 For a fuller account of this story, see Marc Trachtenberg, A Constructed Peace: The Making of the European Settlement (Princeton: Princeton University Press, 1999), pp. 303, 369-379.
especially Henry Kissinger, “The Politics of Intervention: Iraq ‘Regime Change’
is a Revolutionary Strategy,” Los Angeles Times, August 9, 2002 (text);
George Shultz, “Act Now,” Washington Post, September 6, 2002 (text); James A.
Baker, “The Right Way to Change Iraq’s Regime,” International Herald
Tribune, August 26, 2002 (text). Kissinger, one should note in passing, was
incorrectly portrayed by the New York Times as an opponent of the
policy. On this episode, see Sridhar
Pappu, “The Times and Kissinger: Explanation or Apology?”
 Steven Erlanger, “For Now, Trading Allies for Votes,” New York Times, September 14, 2002 (text), and Peter Finn, “Ruling Coalition Wins Narrowly in German Vote: Strong Anti-War Stance Helps Schroeder Defeat Conservatives,” Washington Post, September 23, 2002 (text).
 Steven Weisman, “A Long, Winding Road to a Diplomatic Dead End,” New York Times, March 17, 2003 (text), and Marc Champion, Charles Fleming, Ian Johnson and Carla Anne Robbins, “Allies at Odds: Behind U.S. Rift With Europeans: Slights and Politics: Schröder and Chirac Discover How Popular Tweaking a Superpower Can Be,” Wall Street Journal, March 27, 2003 (text). These two articles are the best descriptions of this story that have appeared so far.
 Luc de Barochez, “Jacques Chirac and Gerhard Schröder se prononcent pour un règlement pacifique: Front franco-allemand sur la crise irakienne,” Le Figaro, January 23, 2003 (text). See also the text of the joint Chirac-Schröder press conference and joint television interview, both of January 22, 2003 (http://www.elysee.fr/cgi-bin/auracom/aurweb/search/file?aur_file=discours/2003/CP030122.html (text) and http://www.elysee.fr/cgi-bin/auracom/aurweb/search/file?aur_file=discours/2003/TV030122.html) (text).
 See, for example, Chirac and Schröder interview with Olivier Mazerolle and Ulrich Wickert, January 22, 2003 (http://www.elysee.fr/cgi-bin/auracom/aurweb/search/file?aur_file=discours/2003/TV030122.html) (text), and Chirac-Schröder joint press conference, January 22, 2003 (http://www.elysee.fr/cgi-bin/auracom/aurweb/search/file?aur_file=discours/2003/CP030122.html) (text).
 David Sanger, “Bush Links Europe’s Ban on Bio-Crops with Hunger,” New York Times, May 22, 2003 (text). See also, Alexandra Stanley, “Two Disciples Spread Word: The End is Near,” New York Times, March 17, 2003 (text); Elisabeth Bumiller, “U.S., Angry at French Stance on War, Considers Punishment,” New York Times, April 24, 2003 (text); Elaine Sciolino, “France Works to Limit Damage from U.S. Anger,” New York Times, April 25, 2003 (text); and especially Weisman, “Long, Winding Road” (text) and Champion et al., “Allies at Odds” (text).
Chirac’s remarks were widely reported in the press. See, for example, Ian Black, “Threat of War:
Furious Chirac Hits Out at ‘Infantile’ Easterners,” The Guardian (
 To be
sure, this view is not universally accepted.
In France, for example, a March 2003 poll showed that only three percent
of those questioned thought the main motivation of the U.S for going to war was
to “disarm Iraq”; 49 percent thought it
was to “take control of Iraq’s petroleum resources”
(http://www.ifop.com/europe/sondages/opinionf/jgtirak.asp) (text). Indeed, many people have claimed, especially
after no such weapons were actually found in Iraq, that the argument about
Iraqi weapons of mass destruction was artificially trumped up, to serve as a
pretext for a war that the Bush administration wanted to conduct for other
reasons. But the fact that an assessment
turned out to be mistaken is no proof that it was simply fabricated, and there
are many reasons why the argument that the Bush administration was lying on
this matter is simply implausible. Henry
Kissinger, for example, made one key point in a September 2003 interview: “I attended many closed hearings in
Washington, and it is impossible to imagine that representatives of the US
administration constantly lied to each other at such hearings when they were
talking about Iraqi weapons of mass destruction.” Y. Verlin and D. Suslov,
 See, for example, Kenneth Pollack, The Threatening Storm: The Case for Invading Iraq (New York: Random House, 2002), pp.xxii, 153-158. Despite the subtitle, this is a serious and well-balanced book, and should be read by anyone who wants to understand the sort of thinking that led the United States to adopt the policy it did.
in Jeffrey Goldberg, “The Great Terror,” The New Yorker, March 25, 2002
(toward the end of the article) (text). Note also the evidence from non-U.S. sources
cited in Julian Borger, “Saddam ‘will have nuclear weapons material by 2005,’” The
 Article in the German weekly Focus quoted in Agence France Presse report, February 2, 2003 (text). That same month, the BND’s “chief analyst” appeared before the Bundestag’s foreign affairs committee. The BND, according to that analyst, was “convinced that Saddam is still playing games with inspectors” and had “yet to explain what happened to his enormous stockpiles of biological and chemical weapons. The analyst also explained that intelligence officials had discovered that in recent years Iraq has repeatedly purchased equipment and materials that could be used to produce new weapons of horror.” “What Now, Mr. President?,” cover story in Der Spiegel, February 17, 2003 (http://www.spiegel.de/spiegel/english/0,1518,236512,00.html) (text).
 The most important example is the argument Kenneth Waltz develops in the chapters he wrote in book jointly authored with Scott Sagan, The Spread of Nuclear Weapons: A Debate Renewed (New York: Norton, 2003). For a critique, see the review I wrote of this book published in The National Interest (Fall 2002); a better version of that review is available online (http://www.polisci.ucla.edu/faculty/trachtenberg/cv/prolif.doc) (text).
 Quoted in “Serving Notice
of a New America that is Poised to Strike First and Alone,”
 Schelling Study Group Report, “Report on Strategic Developments over the Next Decade for the Inter-Agency Panel,” October 12, 1962, pp. 51-55 (pp. 54-55 for the quotations), in National Security Files, box 376, John F. Kennedy Library, Boston.
 Avigdor Haselkorn, The Continuing Storm: Iraq, Poisonous Weapons, and Deterrence (New Haven: Yale University Press, 1999), p. 68.
Charles Duelfer, “Weapons of Mass Destruction Programs in
 See Haselkorn, Continuing Storm, pp. 67-68, and Lawrence Freedman and Efraim Karsh, The Gulf Conflict, 1990-1991: Diplomacy and War in the New World Order (Princeton: Princeton University Press, 1993), pp. 52, 344-345.
 See Robert Gallucci’s discussion of the inspection regime as it actually functioned during the UNSCOM period. The basic rule was, he points out, “if you find it, you get to destroy it; if you don’t destroy it, we get to keep it.” Quoted in Jean Krasno and James Sutterlin, The United Nations and Iraq: Defanging the Viper (Westport: Praeger, 2003), p. 80. Gallucci was deputy executive director of UNSCOM, and is currently dean of the School of Foreign Service at Georgetown University.
 Robert Gallucci testimony, 107th Congress, 2nd session, U.S. Senate Foreign Relations Committee, “Hearings to Examine Threats, Consequences and Regional Considerations Surrounding Iraq,” July 31, 2002, p. 66 (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_senate_hearings&docid=f:81697.pdf) (text).
 See, especially, Charles Duelfer, “The Inevitable Failure of Inspections in Iraq,” Arms Control Today (September 2002).
 For the U.S. view on this point, see especially Fareed Zakaria, “Message to the Foot-Draggers,” Washington Post, September 24, 2002: “The dust from the Persian Gulf War had not settled when the French government began a quiet but persistent campaign to gut the sanctions against Iraq, turn inspections into a charade and send signals to Saddam Hussein that Paris was ready to do business with him again” (text).
 The allusion here is to Jürgen Habermas’s reference to the “civilizing achievement of legally domesticating the state of nature among belligerent nations” in an interview published in The Nation, December 16, 2002.
 See, for example, Charles Lambroschini, “Le droit ne se divise pas,” Le Figaro, February 21, 2003 (text). Note also Chancellor Schröder’s views, as paraphrased in a cover story, “More Europe,” published in Der Spiegel on March 31, 2003, and especially the reference there to how “the law of the more powerful has replaced the law.” For the views of a very eminent French student of international affairs, see Pierre Hassner, “Le retour aux guerres sans règles,” Les Echos, October 17, 2002 (text); Hassner makes many of these same points.
 See, for example, a speech given by the State Department Legal Advisor, William Howard Taft, IV, to the National Association of Attorneys General on March 20, 2003 (http://usinfo.state.gov/regional/nea/iraq/text2003/032129taft.htm) (text). For a defense of the legality of U.S. policy by a distinguished legal scholar that takes a similar line, see Ruth Wedgwood, “Legal Authority Exists for a Strike on Iraq,” The Financial Times (London), March 14, 2003. Wedgwood debated the issue with another professor of law, Mary Ellen O’Connell, at the Johns Hopkins University School of Advanced International Studies on October 29, 2002. One can listen to a recording of the debate by clicking into a link on the SAIS homepage (http://www.sais-jhu.edu/).
 For a strong dissenting argument, see especially the works of Michael J. Glennon: “The Fog of Law: Self-Defense, Incoherence, and Incoherence in Article 51 of the United Nations Charter,” Harvard Journal of Law and Public Policy, vol. 25 (spring 2002); “Preempting Terrorism: The Case for Anticipatory Self-Defense,” Weekly Standard, January 28, 2002; and Limits of Law, Prerogatives of Power: Interventionism after Kosovo (New York: Oalgrave, 2001). See also Thomas Franck, “Terrorism and the Right of Self-Defense,” American Journal of International Law, vol. 95 (October 2001)—a reply to the charge leveled against the United States by a number of mainly German international lawyers that even the U.S. intervention in Afghanistan against al-Qaeda was unlawful.
 See, for example, Louis Henkin, How Nations Behave: Law and Foreign Policy, 2nd ed (New York: Columbia University Press, 1979), pp. 137, 141, 155.
 Ian Brownlie, International Law and the Use of Force by States (New York: Oxford University Press, 1963), p. 268.
 The Charter of the United Nations: A Commentary, ed. Bruno Simma, 2nd ed., vol. 1 (New York: Oxford University Press, 2002), p. 794.
 Lasso Oppenheim, “The Science of International Law: Its Task and Method,” American Journal of International Law, vol. 2, no. 2 (April 1908), p. 322; see also pp. 332-333.
 Hans Morgenthau, Politics among Nations, 3rd edition (New York: Knopf, 1961), p. 279. Morgenthau himself, one should remember, had begun his career as a student of international law.
 Henkin, How Nations Behave, p. 23.
 The historian’s approach in this regard is somewhat at variance with that of legal scholars, who generally play down the importance of this kind of evidence. “Since the historical will of the parties is only of secondary importance for the interpretation of the Charter,” one of those scholars writes, “the significance of subsequent practice in a historical perspective is also minute.” Simma, ed., Charter of the United Nations, vol. 1, p. 27. For an example of the way legal scholars, to the extent that they use historical sources at all, rely on the record of those formal debates, see Henkin, How Nations Behave, p. 141: “The fair reading of Article 51 permits unilateral use of force only in a very narrow and clear circumstance, in self-defense if an armed attack occurs. Nothing in the history of its drafting (the travaux préparatoires) suggests that the framers of the Charter intended something broader than the language implied.”
 Meetings of the U.S. Delegation to the San Francisco Conference, May 4, May 7, and May 8, 1945, FRUS 1945, 1:637, 648; see also p. 593. Dulles made much the same point in the ratification hearings. “There is nothing whatever in the Charter,” he said, “which impairs a nation’s right of self-defense. The prohibition against the use of force is a prohibition against the use of force for purposes inconsistent with the purposes of the Charter. Among the purposes of the Charter is security.” No one at the hearings took issue in any way with what Dulles had said. 79th Congress, 1st session, Senate Foreign Relations Committee hearings, The Charter of the United Nations, July 9-13, 1945, p. 650.
 Meetings of U.S. Delegation to the San Francisco Conference, May 7 and 12, 1945, FRUS 1945, 1:637, 677.
 Ibid., p. 637.
 Meetings of the U.S. Delegation to the San Francisco, May 4 and 12, 1945, ibid., pp. 591 (“preclusive rights”), 593, 680. Note also General Embick’s reference in the May 4 meeting to the need for America to maintain “preclusive control over this hemisphere” (p. 594).
 Hans Kelsen, Principles of International Law, 2nd ed. (New York: Holt, Rinehart and Winston, 1966), p. 38; Julius Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (Berkeley and Los Angeles: University of California Press, 1958), pp. 93-98; the quotation is on p. 96. Note also the passage from Judge Sir Robert Jennings’s partial dissent in the Nicaragua case, quoted in Franck, Recourse to Force, pp. 62-63.
 Note Leo Pasvolsky’s remarks in the May 12, 1945, meeting of the U.S. delegation to the San Francisco Conference, FRUS 1945, 1:677, which were quoted above; and also in the May 7 meeting, ibid., p. 639.
 A Commentary on the Charter of the United Nations, Cmd. 6666 of 1945 (London: HMSO, 1945), p. 17.
 See, for example, Howard French, “France’s Army Keeps Grip in African Ex-Colonies,” New York Times, May 22, 1996 (text); Louis Balmond, ed., Les Interventions militaires françaises en Afrique (Paris: Pedone, 1998), and Claude Wauthier, Quatre présidents et l’Afrique: De Gaulle, Pompidou, Giscard d’Estaing, Mitterand: Quarante ans de politique africaine (Paris: Seuil, 1995). See also the revealing memoir written by the head of the French intelligence service in the 1970s: Count Alexandre de Marenches (with Christine Ockrent), Dans le secret des princes (Paris: Stock, 1986), and translated into English as The Fourth World War: Diplomacy and Espionage in the Age of Terrorism (New York: Morrow, 1992) (with David Andelman as co-author). See especially, in the translated edition, pp. 129-130, for the reference to the many actions involving the use of force, including assassinations of heads of state, undertaken by France in Africa, and pp. 191-196, for a discussion of an important operation in the Central African Empire.
 See Andrew Bennett, Condemned to Repetition? The Rise, Fall, and Reprise of Soviet-Russian Military Interventionism, 1973-1996 (Cambridge: MIT Press, 1999), pp. 311-321, and (for the absence of a U.N. mandate), pp. 318, 325-326.
“Putin’s Folly,” The Economist (
 Franck, Recourse to Force, p. 66.
 To capture the idea that juridical arguments are framed with political goals in mind, the French have developed the concept of a “foreign juridical policy.” See Guy de Lacharrière, La politique juridique extérieure (Paris: Economica, 1983), and Guy Ladreit de Lacharrière et la politique juridique extérieure de la France, Michel Debré et al., eds. (Paris: Masson, 1989). De Gaulle himself, incidentally, during the Cuban missile crisis explicitly supported the idea that American action was legal, even though the United States was not actually being attacked. “President Kennedy wishes to react, and to react now,” he told Dean Acheson, who President Kennedy had sent over to brief him on U.S. policy in this affair, “and certainly France can have no objection to that since it is legal for a country to defend itself when it finds itself in danger.” Acheson-de Gaulle meeting, October 22, 1962, FRUS 1961-1963, 11:166.
Ignatieff, “The American Empire: The Burden,” New York Times Magazine,
January 5, 2003. Josef Joffe has used the same metaphor in many recent speeches
and articles. In particular, he
interpreted the European emphasis on multilateral institution-building as an
attempt to put constraints on American power.
“Not to put too fine a point on it,” he wrote, the Europeans and others
“cherished this expansion of multilateral oversight for precisely the reason
why the United States opposed it. Great
powers loathe international institutions they cannot dominate; lesser nations
like them the way the Lilliputians liked their ropes on Gulliver. The name of the game was balancing-on-the-sly,
and both sides knew it, though it was conducted in the name of law, not of
power.” Josef Joffe, “After Bipolarity:
Balancing Against Mr. Big,” lecture at
 Stone, Aggression and World Order, pp. 97 (for the quotation), 101.
 Franklin Roosevelt, Annual Message to the Congress, January 6, 1941, Public Papers and Addresses of Franklin D. Roosevelt, 1940 volume (New York: Macmillan, 1941), p. 669.
 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977), p. 85
 Walzer, Just and Unjust Wars, p. xiii.
 On April 8, 2003, for example, Le Monde carried an article with the title “Bush, obscène mécanicien de l'empire” (text) It is inconceivable that an anti-French article with a similarly inflammatory title would have been published at the time in the New York Times.
 Sam Tanenhaus, “Bush’s Brain Trust,” Vanity Fair, July 2003, p. 169.
 For examples of articles using the word “pretext”, see “Rounds of Lies,” Der Spiegel, June 27, 2003 (http://www.spiegel.de/spiegel/english/0,1518,252199,00.htm); Pierre Marcelle, “Les menteurs,” Libération, June 4, 2003; and Jeffrey Sachs, “The Real Target of the War in Iraq was Saudi Arabia,” Financial Times (London), August 13, 2003. There were articles with similar themes in the Observer (June 1, 2003), the Independent (May 30, 2003), and the Guardian (May 31, 2003).
See, for example, the story in the Daily Mail (London), June 5, 2003, p.
7, whose source was the German newspaper Die Welt. On this incident, see
Sarah Baxter, “If It Makes America Look Bad, It Must Be True, Mustn’t It?” Sunday
 On this point, see especially Jean-François Revel, L’obsession anti-américaine: son fonctionnement, ses causes, ses inconséquences (Paris: Plon, 2002).
 Eisenhower-Norstad meeting, November 4, 1959, FRUS 1958-1960, 7(1):498.
 Pollack, “Spies, Lies, and Weapons.” Pollack, one should note, was by no means a blind supporter of the Bush Iraq policy. In the same paragraph that he characterized French and German behavior as shameless, he also referred to the administration’s “reckless” rush to war.
 See Trachtenberg, Constructed Peace, pp. 147-156.
 Note, for example, de Gaulle’s reference in passing in his memoirs to America as “un pays que sa puissance sollicite vers la domination.” Charles de Gaulle, Mémoires d’espoir: Le renouveau (Paris: Plon, 1970), p. 222.