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The Use Of Force And Accountability In International Law: A U.S. Perspective

Speakers: John Bellinger, Arnold & Porter; Former Legal Adviser, Department Of State, Matthew C. Waxman, ssociate Professor, Columbia University School Of Law;, and David J. Scheffer, Professor Of Law, Northwestern University; Former Ambassador At Large For War Crimes Issues, Department Of State
Moderator: Jeffrey Toobin, Staff Writer, The New Yorker
May 8, 2009, New York, NY
Council on Foreign Relations

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JEFFREY R. TOOBIN: Well, hello, everyone. Welcome to the fifth session of the CFR Conference on the United States and the Future of Global Governance. This session is entitled "The Use of Force and Accountability in International Law: A U.S. Perspective."

Please completely turn off -- not just put on "vibrate" -- your cell phones, BlackBerrys and other electronic devices to avoid interference with the sound system. And I'd like to remind everyone -- oh, including the panel -- (laughter) -- and I'd like to remind everyone this meeting is on the record.

Now, I want to introduce our panelists briefly. They are all very distinguished and I encourage you to read their full bios, but I'm just going to do a quick number.

David Scheffer, right here, is a professor at Northwestern Law School. He's the former ambassador-at-large for war crimes issues in the State Department in the Clinton administration.

John Bellinger is now at Arnold & Porter. He is an adjunct senior fellow for international and national security law at the Council. He was the legal adviser to the State Department and the NSC under Condoleezza Rice.

Matt Waxman is a professor at Columbia Law School. He is an adjunct senior fellow for law and foreign policy here at the Council. And he worked in the Defense Department in the Bush administration, the most recent Bush administration.

So David, let me start with you.

One of the touchstones of our politics now is that the Democratic Party is the party that believes in international law, if I may summarize and stereotype, and the Republican Party is more hostile to that idea.

Based on what we've seen of the Obama administration so far, is that stereotype meaningful, accurate, legitimate in any way?

DAVID J. SCHEFFER: Well, I do think we've seen a fairly rapid evolution of sort of publicly expressed respect for international law and international organizations. But I would also condition that by saying that within the Bush administration -- particularly, I think, in the final years of the Bush administration -- the reality was in fact moving in that direction step by step, faster and faster.

But it wasn't still at the level of public expression and articulation that we fairly rapidly saw occur in the early months of the Bush administration.

TOOBIN: You mean of the Obama --

SCHEFFER: I mean of the Obama administration. So --

We're still so early in the Obama administration it's hard to know whether the rhetoric that one has heard in the last few months, and some of the demonstrated acts, of course -- going back into the climate change negotiations, the whole torture memo issue as it has been revealed by the Obama administration -- those are, shall I say, somewhat significant steps.

But we still have a long way to go before the expression of rhetoric that we've heard in the last couple of months or so is actually demonstrated by performance over the long term.

TOOBIN: So, John, how big has the transition been? Has there been a big change between the attitudes between Bush and Obama, or not so much?

JOHN B. BELLINGER III: I think there has been a significant change of tone and some changes in policy. I appreciate David's acknowledging, in fact, the changes in our second term, because it really was there. I think we really had two terms on many, many foreign policy issues, of which international law was one of them.

And I will say candidly, when I became the legal adviser, I wrote a transition paper for Secretary Rice in 2004 saying, essentially, we have dug ourselves into a real hole on international law that needs to be changed in the second term. And we really worked on that, on the International Criminal Court --

Perhaps the most famous was the lesser-known case of the Medellin case that we ordered the states to comply with the ICJ's ruling and took it all the way up to the Supreme Court to defend the president's decision, which -- even though that was very difficult to do.

I gave hundreds of speeches. Secretary Rice -- actually, one of her first public appearances was to the American Society of International Law, the first secretary of State to do that in 30 years.

But I agree with part of the premise of your point. I was very disappointed with the -- some of the tone coming out of our first term. We worked to correct it in the second term.

President Obama has been quite clear on both substance -- Guantánamo -- and on tone. Now, that said -- and I think we'll spend some time talking about this today -- he is going to have a quite difficult time working through some of these issues. We're already seeing --

Tone is very important. Europeans, I think, get away with a lot on international law, because they talk about international law a lot, and we don't. But then they get away with things.

But what Obama is going to find, for example, is on, say, this Medellin case, very difficult now to comply with the ICJ's ruling. Because the Supreme Court said he didn't have the power to do it by himself, he's going to have to go hat-in-hand to Congress to try to get legislation to order a review of all these death sentences.

So it's off to a good start, but I think some of this will be quite difficult. And I know we're going to talk about the International Criminal Court --

TOOBIN: Well, Matt, talk about you. What are the hard questions ahead?

MATTHEW C. WAXMAN: I'm happy to list a couple. I agree with the other two panelists, both in -- I think we all agree there were some shifts during the Bush administration towards greater engagement on international law questions.

And I think what -- I think certainly in the first half of the last Bush administration the mentality that tended to win out in a lot of the debates across a range of issues -- terrorism, International Criminal Court, climate change -- I think the mentality that tended to win out was one that saw international legal constraints as always coming at the expense of American power.

And we've certainly seen a shift already in the way that the Obama administration thinks about that, recognizing that binding international law need not come at the expense of American power, but can often enhance it in a variety of ways.

I think there are a couple -- let me name a few issues where I think the expectations are going to be extremely high that the Obama administration is going to reach international law agreement with European and other partners.

And those include the climate issue, the International Criminal Court, and terrorism with respect to issues like detention.

On all of those issues, I think you'll see a narrowing of the difference, of the divide between the United States and a lot of its international partners when it comes to international law.

You'll see much greater engagement and willingness on the part of the Obama administration to engage in those debates. But I don't know that we'll see a complete closing of that gap, at least in the near term, on any of those three issues.

TOOBIN: David?

SCHEFFER: Well, the -- Matt has been correct to point to terrorism and the International Criminal Court and detainee issues.

I just want to note, though, that there's a cluster of issues in which the Obama administration can actually take a considerable leap and which kept falling into gridlock not because of really opposition from colleagues John and Matt here, at all, within -- in fact, I think they were quite supportive of these efforts. It's just that there was a gridlock.

And that kind of gridlock might come undone on such things as the Convention on the Law of the Sea, the Convention on Discrimination Against Women, CEDAW -- Against Discrimination Against Women --

TOOBIN: When you say gridlock, gridlock between -- who were the gridlock parties?

(Cross talk.)

SCHEFFER: Oh, gridlock within the executive branch, as well as with Congress and certain elements within Congress.

It seems to me that the Obama administration may have enough political capital, certainly in the first couple of years, to be able to push through perhaps -- and I'm very, you know -- obviously I understand politics, but -- optimistic that perhaps we can see Law of the Sea Convention, CEDAW, and the Comprehensive Nuclear Test Ban Treaty.

Those are three ones which, even in the campaign, President Obama said he wanted to see those ratified. Now, it may be that if we can take that leap in the first couple of years, that'll be a platform upon which to deal with many other issues as well.

TOOBIN: John, I know you want to speak, but I have a question about the politics of this whole issue. I guess partially maybe I'm a little shaped by this -- by the fact that I work at CNN and occasionally on the Lou Dobbs program. (Laughter.)

And there is a lot of hostility in the political world to the notion of international organizations and a bunch of bureaucrats in fill-in-the-country, Brussels, U.N., whatever, telling us what to do.

How, as a senior administration official who appeared in public all the time on these issues, how did you deal with that?

BELLINGER: Well, that is frustrating, and that is, in fact, a underlying current, I think, in the United States that we just have to deal with, Republican and Democratic. I think --

I do think you're right. Sadly, the Republican Party, that strand of liberal Republican internationalism seems to have been sort of stamped out, particularly in the Senate.

But nonetheless, there is in those parties all across the country this suspicion of international law, of international institutions. It was very difficult for me as the legal adviser to try to stick up for these issues.

We need to do more education of why international law -- not every treaty, not all across the board, so you can't generalize -- which I am rapidly generalizing. But there is unfortunately a general hostility to international law, when it needs to be more understood of how particular treaties are in our interest.

To respond quickly to David's point, actually, contrary to the image of our administration, we pushed through more treaties in the 110th Congress -- 90 treaties through the Senate -- than at any point in American history. More treaties pushed through, including many multilateral treaties.

The --

TOOBIN (?): That's -- I didn't know you pushed through one. (Laughter.) As a reasonably intelligent news consumer, I had no idea.

BELLINGER: It's -- well, this also actually gets down to, you know, just conventional wisdom.

TOOBIN (?): Yeah.

BELLINGER: The conventional wisdom had gotten to be that this administration didn't believe in international law at all, and obviously we did get ourselves caught into the gridlock of Iraq and detainees in particular, which we couldn't get out of.

But many other things we were really very supportive of international law. We really should talk a little bit about this Medellin case, where --

TOOBIN: Well, I'm not sure everyone is familiar with the Medellin case. Could you briefly just talk about sort of what the case was? Because the facts are rather complicated.

BELLINGER: It really is quite interesting as a example of contrary-to-type of what people thought (out of ?) the Bush administration.

The International Court of Justice ordered the United States in 2004 to review the death sentences of 51 Mexican nationals in a number of different states who had not received their consular notification.

When you're -- if you are a national of a party to the Vienna Convention on Consular Relations and you are arrested in someone else's country, you're entitled to be -- have your consulate notified.

None of these Mexican nationals had had the Mexican consulate notified. They were subsequently tried, convicted, condemned to death. The Mexicans took this to the World Court. The World Court ordered us to have all of these cases reviewed.

Interestingly, even though the individuals had exhausted their state law remedies, the -- with this order, this was the first challenge for Secretary Rice as secretary of State, in February of 2005. And she persuaded the president that we had to comply with the World Court's order, even though it was contrary to state law.

And so the president, even being a former governor of Texas, and even though his mailbag was running terribly against reviewing all of these cases, ordered -- issued an order in February 2005 to have the -- all these cases in Texas and California reviewed and reconsidered.

Texas then challenged their former governor. Said he lacked the power, under the Constitution, to do that. We defended the president's decision all the way up to the Supreme Court.

And sadly, in 2008, the Supreme Court then struck down our effort to comply with international law, saying the president -- while it's true that there were some international law obligations, they didn't dispute that, they said the president lacks the power, under his foreign affairs authority, to order compliance contrary to state law.

So we had actually worked all the way up to the Supreme Court, even when it was very difficult and contrary to popular opinion, to comply with the order of the World Court. And --

This was actually the point with the Obama administration that I was trying to make, is that Obama now still has the same order from the World Court. There are still several dozen Mexican nationals on death row in different states, waiting to be executed.

The Supreme Court has now taken away the president's power to do anything unilaterally, so he has to go to Congress to get legislation to comply with international law.

I have to say I'm actually a little surprised that four months in, that he has not done that. That, to me, would have been low-hanging fruit. I think it probably has to do with the fact that my successor, Harold Koh, is not yet on duty.

But President Obama will then have to use up significant political capital to go to the Congress to get them to pass a law that will give him the power to review all of these death sentences in different states in order to comply with a ruling of the World Court. And this then gets into this (theme ?): will Congress do that? They may not.

TOOBIN: Matt, David suggested there were three treaties that were possibly -- or he thought were likely to be ratified by the Senate. Do you agree that the politics of the current situation suggest that's a real possibility?

WAXMAN: I think it's a real possibility, but I agree with John it's going to take some political capital. I think the White House is going to have to make a commitment to spending some, in order to get these over the goal line.

Unlike many European countries where it's now become sort of embedded in their legal system that domestic law must defer, is trumped by international law, this is something that doesn't come very naturally in our American legal system.

And especially with regard to questions like human rights law or international law governing the activity of states within their territories or with respect to their own citizens, right?

If one looks at the history of international law, human rights law is a relatively new innovation within the last half-century. Prior to that, for the most part, what went on within your own country was your own business, was not a matter of international law.

And even more recently, I think it's dawned on most Americans that these international human rights treaties may actually come and constrain us. We're used to thinking about international human rights law as directed at other countries; this is law that should apply to Saudi Arabia or China or Zimbabwe. This isn't law that was meant to apply to us.

And I think the Medellin case is a perfect example of where this is now -- the spotlight, the international law spotlight has been turned on us.

It is in our interest to comply, even at the expense, I think, of some of our own domestic political flexibility. But that takes some persuasion; that takes some political capital.

MR. : I have to just -- a quick word on Law of the Sea before we move on. Two things:

One, we actually didn't have gridlock in our administration. We did persuade the -- all of the parts of the government that we were in favor of the Law of the Sea Convention. The president actually listed it at the top of his treaty priority list. We tried to get it through the Senate, and then we got caught in gridlock in the Senate.

I led our efforts to try to secure Senate approval. I am hopeful that now, frankly, with the -- Senator Specter switching parties and we've got 60 to cut off cloture, that President Obama will in fact, as David said, make that his top priority.

Nonetheless, I suspect his legislative people are going to come to him and say, gee, Law of the Sea, is that really -- do we really want to have a blood bath over this treaty on the Senate floor?

MR. : Now -- you're talking about Democrats as "we" now? (Laughter.) Is that how much --

MR. : I'm putting myself in the perspective --

MR. : Yeah.

TOOBIN: Let's talk a little bit about the use of force.

The Obama administration has two wars going on; one it's trying to end, the war in Iraq, and one it's ramping up to some extent in Afghanistan. So we can't speak about the next war, yet -- I guess we all hope.

But where do things stand in terms of the United States using force around the world? How much does the current administration plan on involving international institutions, feels bound by international law when it comes to the rule of law -- or, the use of force?

And what did we learn in the Bush administration on this subject?

David, I'll start with you.

SCHEFFER: Well, a large question.

TOOBIN: Yeah.

SCHEFFER: I'll take only a couple of components of it.

I think on the one hand you clearly see in the Obama administration a philosophy of some restraint with respect to the use of military force, in terms of the preference of trying to find, when possible, a multilateral buy-in to the use of military force. I think that's the rhetorical framework of what the administration has been articulating.

On the other hand, of course, you see how we've continued to respond to threats on Pakistani territory with the use of military force, and that's not with any Security Council buy-in whatsoever.

So that issue, I think, is still going to be out there in terms of how the United States occasionally uses and risks using force unilaterally. And the question is for what objectives, and under what legal rationales, and whether it's being done as an openly stated use of force or, frankly, as a no-comment use of force.

TOOBIN: Where does Pakistan rank in -- is it a no-comment use of force, or is it an openly stated?

SCHEFFER: It's a no-comment use of force at this point, in terms of the use of air power with respect to threats on Pakistani territory.

Now, I happen to be one that believes that you can speak a little more openly about these matters in terms of legal doctrines that we are very, very familiar with, whether it be collective self-defense or doctrines that are emerging with respect to responsibility to protect.

I think it's going to be extremely important for the Obama administration to develop a line of rationale for the occasional use of military force that is deeply respectful of international law, but also recognizes that when we don't follow it strictly to the Nth point of, literally, an explicit Security Council resolution under Chapter 7 that authorizes a particular use of military force, if we don't reach that diplomatic objective and we have to fall short of it, that we understand that we've followed a line of rationale and of coalition building and of diplomatic work that allows us to say we've tried the best we can to follow a legal structure with respect to this use of force, and in the last instance we are doing this for what we think is an extremely legitimate purpose.

We're being somewhat transparent about it and, frankly, if there is a risk involved politically, we are accepting that risk, but with the full knowledge that we're going to continue to keep seeking to use this military force in a way that is as compatible and as observant as possible of international legal structures.

TOOBIN: John, let me just ask you more a backward-looking question. And what did we learn about the use of force and international law during the Bush years?

BELLINGER: Well, I think the overall theme of this conference essentially, as I see it, is: Are the existing international institutions and international rules that were developed essentially in the mid-19th century -- or, mid-20th century -- still applicable, or do they need some modernization?

And I -- my sense is that the rules on use of force, such as they are, do need some modernization. We -- the Bush administration pushed the envelope on a couple of these and ended up generating enormous international dissent and conflict, and in some ways probably did not do it the right way.

But on the other hand, it doesn't mean that there's not an issue. And I will tick off, sort of , those three issues regarding use of force that I think still need to be discussed.

One is this famous issue of preemption and anticipatory self-defense. I personally think that the debate over preemption got overheated, but there is a fair point about in the modern age, when you see a threat that is brewing which may include a group of terrorists who are plotting something, do you simply -- do you have to wait to absorb the attack and then defend yourself, or at what point can you act in anticipation?

I think Europeans think you cannot do preemption, but preemption really is just some form of anticipatory self-defense.

So the debate still needs to be worked out as to how far in advance can you anticipate the need to defend yourself. That's point one. The second is can you defend yourself and use military force against non-state actors.

When I began my discussions on these issues with -- largely with Europeans around the world, the general response coming back to me was you may not use military force to defend yourself against non-state actors.

Non-state actors, you have to use the criminal law rules. Use of force is for conflicts between states.

I think it's now becoming generally accepted as a broad principle that states may use force to defend themselves against a non-state actor that is housed in another state.

And of course, the devil is in the details. We've not yet worked out what those details are, but we have a new international legal norm that's being developed.

And then, of course, this last one's the one I think that David was referring to, is when can you use force essentially for humanitarian purposes, when the Charter would not otherwise allow it?

TOOBIN: To stop a genocide, Darfur --

BELLINGER: Precisely. The strict international law rule would be if the Security Council has not authorized the use of force to go into Sudan or Burma or something like that, then you can't do it.

And, of course, the United States has not, so far. But those rules are chafing a little bit. It makes it difficult for countries like the United States to stand idly by while watching genocide going on in a country when those traditional use-of-force rules constrain us.

TOOBIN: David, did you want to add --

SCHEFFER: Well, just to jump, and if I may, I'll try to put something provocative on the table here.

(Cross talk.)

There's been a little bit too much agreement, I think. (Laughter.)

I think a tremendous amount of energy has been expended, intellectually and otherwise, in recent years to try to develop a new, legal theory that will justify what has traditionally been regarded as essentially violations of international law as it has evolved, not only in the last 50 or 60 years, but for hundreds of years, with respect to the use of military force.

I understand the politics behind that, but that kind of energy is essentially being directed towards how can we change the rules of the game to basically justify particular types of actions so that we are risk-free legally, both under state responsibility and individual criminal responsibility, to do certain things.

I could see the rationale for some modernization of international law, obviously. It always has to evolve.

But I think the focus should be more on how do we structure our policies within widely accepted traditional frameworks of international law, but develop a -- an approach to it such that if we are in non-compliance with that law, rather than trying to change it so that the law says you are in compliance now for doing X, Y, and Z, we have enough political capital internationally to be able to say to the rest of the world, today we actually understand that your perspective is that we're not in compliance with international law.

We may even agree with you on that point. But you know what we've done to get to this point. We had to do this, we think, to save the lives of 30,000 people at risk in northern Sri Lanka, or wherever it might be. And we'll accept the risk politically of how you view our action today.

But we're not going to try to spend the next 10 years to change the rules of the game because of how we felt we needed to respond when the international legal system did not completely kick in to our benefit.

And I take that, just for one second, into the domestic sphere with respect to detainee issues and the whole torture debate.

A tremendous effort, from 2002 onwards, to try to reinterpret the law so as to state that what was being done was, in fact, justifiable and that t here was no legal liability for it.

TOOBIN: Well, that's what the torture memo said. Right. Yes.

SCHEFFER: Exactly. Exactly. That's their whole purpose, is to remove the liability from the effort --

-- as opposed to what we saw in 1999 out of the Israeli Supreme Court when they were posed with the whole issue of torture. They said, look, you can't just change all the rules. Torture is torture -- cruel, inhuman and degrading treatment is cruel, inhuman and degrading treatment.

We're not going to change that. That is set. We've made a lot of progress in civilization. We're there now.

But you can, under certain circumstances, you can come into this courtroom and say, I'm invoking the necessity defense. Hear me out, listen to the facts. There was a ticking bomb. We knew it; it was going to go off in 30 minutes. The facts established that. We had to do what we had to do. We hand ourselves into the hands of justice to understand our actions under the necessity defense.

You can't (liken ?) the necessity defense in the law, the Supreme Court of Israel said. It's an ad hoc, judicially constructed defense, case by case.

That accepts the responsibility of complying with law, but also understand that there are going to be circumstances where you have to have the courage and, frankly, the maturity as a nation to say, we've stepped outside of the law for a very, very good reason, and we stand and you may judge us.

TOOBIN: Matt, you were in the Defense Department in the first term, right?

WAXMAN: Yup.

TOOBIN: When Secretary Rumsfeld was still there and when the detainee issues really first bubbled up. That's sort of why you were hired, as I recall.

WAXMAN: Right.

TOOBIN: When you were trying to make your judgments and give advice, what did you worry about? Did you worry about international law? Did you worry about criminal law?

What was the guiding principle there?

WAXMAN: This gets back to the issue I talked about before of a dominant mentality within the Bush administration, at least in the first term, that tended to see international law as coming at the expense of U.S. power, of American power.

And there was a counter argument to that. There was a movement --

TOOBIN: Which was?

WAXMAN: -- within the administration, of which John was a big part, that argued that rather than seeing international legal constraints as coming at the expense of American power, we should see them as something that supports and expands American power, in a number of ways --

In terms of building political and diplomatic support at home and abroad for our actions, in terms of coordinating our policy with that of our allies, in terms of strengthening certain principles and codes of behavior abroad that are in our interests.

And I think it was that -- I think a lot of the debates within the Bush administration on issues like detainee treatment, but also on issues like the degree to which we should work through the U.N. Security Council on use-of-force issues, dealing with proliferation threats, et cetera.

I think that debate between do you see international law as coming largely at the expense of American power, or do you see it as something that expands our power, I think explains a lot of the divide.

And I would just echo some of David's points. I think these are similar to what John was saying on the use-of-force question.

I think if -- I think even the Obama administration, which is pledging a much stronger policy of engagement with the U.N. Security Council is going to find that there are certain international crises, security crises or humanitarian crises, that are not workable or are not being adequately addressed through the U.N. system.

And I think the Obama administration is going to reserve for itself the possibility of operating outside that system. I think it --

On security issues like weapons of mass destruction proliferation, I think the Obama administration internally is going to reserve for itself options that look a lot like the preemption doctrine that the Bush administration articulated.

They're not going to go out and pound their chests and explain it the way that the Bush administration did, and this gets at the important point about tone that John raised before.

And on the issue of preventing genocide, the current U.S. ambassador to the U.N., Susan Rice, made very clear, she was very explicit in her 2007 testimony on the Hill, that if the U.N. doesn't adequately act to stop ongoing genocide in Darfur, the United States should take unilateral military action. This is our U.S. ambassador to the U.N. arguing in favor of unilateral military action, if necessary.

TOOBIN: Before we go to questions from the audience, I just want to raise one more topic for everybody to weigh in on, which is the International Criminal Court.

We are not part of it. It's coming up on its 10th anniversary now. Is there any prospect that that's going to change?

SCHEFFER: Well, I'll start that one.

TOOBIN: Yes.

SCHEFFER: Everything is relevant in terms of how long this might take. I think that ultimately -- I will be bold enough to say that I think the United States will be a part of the International Criminal Court.

I think the real debate figures around two issues: one, how long should that take; how many years, what's the political strategy to get there, what steps do you roll out?

Some of us have written quite a bit about that in terms of strategies. I put out a Century Foundation paper with Rear Admiral John Hutson on that issue recently that tries to spell out here are the steps you should take legislatively; here are the steps you can take diplomatically, to try to get to that end point of ultimately being part of the treaty, but at the same time protecting national security and national interests in the process.

And that's the second issue, which has always dogged us, which is the exposure of our military to the jurisdiction of the Court. Now, that's a very long discussion. We don't have time to get into it.

I'll just bottom-line it by saying that I think there really has been an evolution over the years as to an understanding and appreciation of that, at least among some elements of the military.

I think there's still a very high mountain to climb with respect to the military at large to ensure that they would feel comfortable with this process. And that's where the real dog is in the fight in Washington.

I think the Senate is ultimately evolving in a way that doesn't prohibit us from thinking about the necessary vote in the Senate, but it's so much an educational exercise and so many of us have been in the vineyards of this for so many years, with one group after another.

I was just up at West Point, talking to West Point officers and cadets about this. Fascinating discussion. It just takes dogged, educational effort so that people understand that the risks may not be exactly that they think they are, and that frankly we can take a lot of steps domestically that would ensure that this Court actually proceeds as it was really intended to do, which is to go after those mass atrocities, those systematically planned genocides, crimes against humanity which, in fact, it is doing.

TOOBIN: John, talk about what you think the prospects are for the International Criminal Court, but also on the merits. Do you think it's a good idea? Should we be involved?

BELLINGER: I -- second question first. Personally, yes. I think the -- at the broadest level of an international --

TOOBIN (?): How did you last all those years in the Bush administration? (Laughter.)

BELLINGER: We had different views in the Bush administration on different things.

TOOBIN (?): Yeah.

BELLINGER: And I don't mean necessarily as it's written right now. That's the problem with the Rome Statute.

People need to remember, and many people need to forget -- David knows better than anybody, acutely -- that President Clinton, while signing the Rome Statute, said that it was flawed, and so flawed that he wasn't going to send it to the Senate. And he specifically said, and I do not recommend that my successor send it to the Senate.

MR. : But John, you always say that, and then you don't --

BELLINGER: But it's -- (inaudible). He said it.

MR. : No, no, but you -- I helped write that letter. The letter has a lot of content to it, one of which is --

(Cross talk.)

MR. : No, no. John, you keep saying this in all of our gatherings, and you've just got to be corrected on it.

We had 20 days left in the administration. No treaty is submitted to the Senate in 20 days. He did say he didn't think his successor should seek to submit it to the Senate until U.S. interests were satisfactorily accommodated and dealt with, and that could take years.

So it wasn't that he didn't want to see it ultimately ratified. He understood what the dynamics were in the Senate. He understood that there still needed to be issues dealt with, and we -- in fact, we had a whole platter of issues that we had teed up for negotiation in 2001, which we weren't there to then follow through on.

So the president was dedicated to that Court, but he also knew that it wasn't prime time for it to go to ratification, just as it took 40 years for the genocide convention to be ratified.

SCHEFFER: But this is always the problem about debating history. It's better to look forward -- (cross talk).

But in general, should the U.S. be part of an International Criminal Court that holds people who have committed genocide, crimes against humanity, and war crimes accountable, rather than setting up little, individual, ad hoc tribunals that are very difficult to do and very expensive.

And the answer is, in principle, yes. And our Congress has for decades been in favor of that. The Republican Party used to be in favor of that.

This particular statute has got some problems and that you can debate the problems. I personally think that the likelihood of an American official ever being hauled off to The Hague are very small.

But that then brings you back. None of this is about logic in Washington; it's all about bureaucratic politics and politics-politics. And the bureaucratic politics, as David said, have to do will we ever get the military on board with the idea that they like this, maybe through some education. But I personally think that's going to be tough to do unless changes are made.

But then at just the broad political level it actually gets back into -- your overall theme, Jeff, is -- are the American people ready to sign up to a treaty where we're saying we are willing to send our American servicemen and -women off to be tried in The Hague?

And if we can write academic papers, which I can write myself, saying of course we ought to be able to do that. We're the leaders of the world. We stand for these principles. But it's just too easy in small towns that say, wait a minute. We're not going to send our men and women off to do that.

So I actually think that it's going to be a very long time before we're (a party ?). The big -- the $64,000 question is going to be, in a year, and I'm sure David will be involved in this, is there's a review conference for the Rome Statute, the 10th anniversary in Ghent next year.

And the question is does the Obama administration go in and say, we're prepared to become party if certain changes are made, and then we'll -- the other parties to the Rome Statute, in their desire to pull in the Obama administration, make those changes.

My suspicion is that they probably would not be willing to do that.

TOOBIN: Matt, a last word, before we go to questions, on the ICC?

WAXMAN: Yeah. I just would amplify a couple of these points.

Under a Republican Congress, it was actually Congress that was even taking -- taken an even harder line against the ICC, even in the Bush administration, through a series of pieces of legislation that, for example, if I recall, authorized the use of military force. This is the invade-The-Hague provision, right?

If an American service member were in prison there, it would authorize the use of all necessary means to free that person. But --

(Cross talk.)

MR. : (Inaudible) -- Secretary Clinton voted for it.

WAXMAN: And imposing what amounted to even (the forms ?) of economic sanctions against other -- against third countries that were supporting the ICC.

So we both, I think, within the executive branch and the Congress have moved considerably towards engagement, and I think we need to move even further.

I agree with the other panelists that insofar as I would say ultimately I think the United States needs to be a part of this Court, but we should hold out joining to -- and use that holding out in order to try to influence developments in its -- in the scope of its jurisdiction, for example, over the issue of the crime of aggression and so forth.

And I would say even more broadly, international criminal law is on the march. We see it in the form of the International Criminal Court; we see it in the form of individual states exercising universal jurisdiction over certain types of criminal activity.

The United States is going to be much better off if it engages on that issue, rather than taking a completely hostile, across-the-board approach.

TOOBIN: Okay.

I would like to invite our members and guests to join in our conversation. Please wait for the microphone and speak directly into it. Stand, state your name and affiliation.

And we go -- who has the microphone?

QUESTIONER: Hi. I'm Nick Rostow from the State University of New York.

What a lot of things have been said to disagree with. (Laughter.)

MR. : Good!

QUESTIONER: But I do have a question. But first of all, the question about the CTBT is whether Senator Lugar has changed his mind. I was staff director of the Senate Intelligence Committee when that treaty came before the Senate. And then he went -- it is not verifiable -- that was the end of the treaty.

And I don't think it's become more verifiable in the last few years, so the question is where does Senator Lugar stand, since he is the herd bull on this issue?

Secondly, and my question really is embedded in this, and David, I -- with great respect to your fine print, when a treaty cannot be changed, when there can be no reservations to a treaty, and the president of the United States says I'm signing it, but I don't recommend that the Senate give its advice and consent to ratification until our interests are accommodated, and there's no way to do it without changing the text of the treaty, that is, in my view, a legal piece of slickery which is contrary to international law, which provides that if you sign a treaty, it means that you intend to abide by it.

And it's something which a lawyer, which Mr. Clinton was, should have known better.

MR. : Well --

QUESTIONER: Now, the question is this.

MR. : Oh, okay. I'm sorry.

QUESTIONER: No, that was a question. (Cross talk.)

MR. : (Inaudible) -- was going to respond to it, but okay. We'll --

QUESTIONER: You can respond to it, but my question is if compliance with international law is in terms of adherence to certain litmus-test treaties, the international -- the Rome Statute; CEDAW; Law of the Sea, which I fervently support; CTBT -- is that really a fair description and how do we get people to focus on the details?

Because it is the details of these treaties, just as it is the details of the Medellin case, where compliance with the law really is the important -- is (approved ?).

TOOBIN (?) : Well, what I can address there is the point about the events surrounding Clinton's signing of the treaty, just as an initial matter.

QUESTIONER: Right.

TOOBIN (?): The Rome Treaty did not stand alone. It had many supplemental documents to it. You had the rules of procedure and evidence, the elements of crimes -- those were concluded in the year 2000, and they helped us advance towards signature, quite frankly.

There were many other supplemental documents that were up to bat for negotiation after that. And one in particular was the U.N.-ICC relationship agreement, which was to be a treaty that would bind the organization of the ICC to whatever it agreed to with the organization of the United Nations.

Our plan was to address some of our most central concerns in that relationship agreement, which would be binding on the Court.

So on -- we did have lawyers working on this. In fact, it was the Legal Adviser's Office who strongly pushed this strategy. And I -- the last time I checked, they were all lawyers.

So the point was we had a strategy to play out in 2001 and 2002, but it required a lot of heavy political lifting to make it work within the relationship agreement. And there were many other factors that we were working on that were pieced together in other supplemental agreements to the treaty.

So it wasn't as if we were sitting there thinking that it was just the one raw document of the Rome Statute that would be the issue that had to be addressed; it was many of the supplemental documents as well.

And the next question? Why don't we -- who has the microphone?

QUESTIONER: (Off mike.)

TOOBIN: Okay, you want to follow up? Go ahead. But quickly -- (inaudible).

QUESTIONER: First of all, I'm not going to get into the argument about the Rome Statute, because the problems with the statute, it's not with procedures or anything else.

The question I had, though, was if U.S. -- is it -- are these litmus treaties that you've been talking about, is that the test of A) what international law is, and B) whether the United States is complying with it?

BELLINGER: Why don't I take --

(Cross talk.)

BELLINGER: (Inaudible) -- I think that's the interesting kind of broader question.

And I do think that in the great conventional wisdom around the world, in particular, there is this sort of litmus test that, despite the 90 treaties that we put through, the -- despite the fact that the United States complies with international law almost all the time, there are, in fact, these sort of litmus tests -- that if you don't pass the litmus tests, then the United States is thought to be not a believer in international law.

And I think some of it, again, does get down to tone. I actually think if we spent, if we had our president and our attorneys general and the secretaries of State of both parties regularly talking about our commitment to international law, there would probably be a different view.

But to give you just a couple of examples, during my time there were a couple of treaties that were being negotiated that had very innocuous titles. One was the UNESCO Cultural Diversity Convention. Another was the OAS Racism Convention.

And we were being pushed enormously by the Europeans on the UNESCO Convention and by the Latins on the Racism Convention. And by their titles, you would think, well, how can you be against those things?

And that was actually sort of -- then became the conventional wisdom. The UNESCO -- the -- how could you be against culture and diversity? And the --

What really was lurking in there was that this was a French-led treaty to protect the French film industry. We were concerned about it because it would be contrary to WTO rules that actually protect a liberal international trade regime.

But the conventional wisdom became no, no, the reason the United States was fussing about this treaty was really because, of course, everybody knows that the United States doesn't believe in international law and we don't believe in culture and in diversity.

The OAS Racism Convention, another good example. The Latins couldn't understand why we'd have problems with this, particularly when we had an African American as secretary of State.

But if you read -- and this is your point, Nick -- the fine print of the things that the countries wanted us to sign up to, which would require us, for example, to prohibit any action that would prevent someone from realizing their life plan, and that that would actually be -- constitute racism, if you were interfering with someone's ability to realize their life plan.

You can imagine that the lawyers in the State Department had some difficulties with that.

TOOBIN: My high school baseball coach interfered with my life plan to be a professional baseball player, and I --

BELLINGER: Well, he would have violated the international law.

TOOBIN: Probably so. That argument didn't occur to me at the time, actually.

Who has the microphone? There you go. Why don't you --

QUESTIONER: Jeff Laurent (ph) at the Century Foundation.

I thought that David was not provocative enough in challenging the love fest for unilateral use of force. So let me push the envelope a little bit on it, because it seems that the debate about it was largely framed in that fairly brief, unipolar moment nine days through the Iraq debacle.

And looking forward, it isn't just U.S. power that's going to be at stake. It may well be Chinese power. And if one thinks of the language that we were reminded would echo inside the Bush administration of international law as a constraint on U.S. power, substituted Soviet power for it, we would be upset. And that explains why the rest of the world was so allergic to it.

And why, when we decided to use unilateral use of force in Iraq, America's favorability ratings, the willingness of other countries to follow the U.S., plummeted 30 (percentage points), 40 percentage points in the space of three months, and President Bush, for the remaining five years of his term, couldn't get those numbers up significantly.

So I guess the question would be even if you're not taking strictly a legalist point of view or the political point of view, when the American public now ain't interested in any new intervention, thank you -- genocide or any other sort, what would be the ways in which you think the international legal standard of, yes, self-defense, but no initiation of use of force without Security Council approval should be watered down, should be loosened?

How would one formulate an alternative standard that would be better for the long term than what American leadership won in 1945 at the San Francisco Charter Conference?

SCHEFFER: Okay. I'm not so sure that I want to codify a watering-down of the standard. I'm perfectly prepared to work with the standard as it exists, but to apply it and to interpret it, with good faith and with good effort, multilaterally with everyone else.

In other words, I'm just not -- Jeff, I hear your question, but I don't think I would want, if I was in a position of authority, I wouldn't want to use all of my political capital and my time to try to rewrite the rules.

I think the rules are, generally speaking, workable. But we have to accept that because of the march of time and new threats that are out there, we're going to have to adjust.

And when we do adjust, we're going to have to explain ourselves with transparency and occasionally take risk that someone will determine that, in fact, we're not in compliance. But I think that's an issue we can get beyond if we work it prudently.

WAXMAN (?): I have just a -- I'll be brief. I have just a slight disagreement with David on that, is that I don't think we really ought to rewrite a lot of the rules. But I think that some of them can be subject to interpretation.

Of course, as we all know these days, talking about any reinterpretation is a dangerous thing. (Chuckles.)

But the rules on self-defense -- traditionally, if you couldn't defend except against a state, but now the attacks in the 21st century are generally not coming from states, but are coming from non-state actors, instead of rewriting the U.N. Charter to say oh, and by the way, this of course also includes the right of self-defense against a non-state actor, why not continue to do what I think we are doing, and what I'm sure the Obama administration will do, which is to say of course, the traditional right of self-defense includes a right of self-defense against a non-state actor.

Now, a nasty person would say oh, you're reinterpreting the old rules. But rather than -- I don't think I hear David saying this -- but rather than ignore the rule and just say well, we're doing the right thing, I would say the traditional rule that says you can act in self-defense includes a right to act in self-defense against a non-state actor.

Similarly, the right of anticipatory self-defense which, in the old days, meant you -- generally you waited for the army to be massing on the border, and no one argued with that.

But in the nuclear age, if you actually had intelligence that a country has developed a nuclear weapon and that they in fact are going to use it, nobody is going to disagree that you could act in anticipatory self-defense.

So I don't know that you have to re-write the rules.

The most difficult one is humanitarian intervention. You just can't squeeze that in, I don't think, into the U.N. Charter. And that's the difficult case.

TOOBIN: Over here, this gentleman?

QUESTIONER: Bart Nichols (sp) -- (inaudible) -- and Associates.

Can you talk for a minute about preemptive war versus preventive war and how you see Iraq? And -- because some people view it as preventive and not preemptive. And from what I understand, there's some justification in international law for preemptive actions.

MR. : Is that -- sorry. Go ahead.

QUESTIONER: The second part is how would you view an attack on Iran, as a preemptive attack or a preventive attack?

TOOBIN: Well, why don't you start -- whoever -- by is preventive and preemptive a meaningful distinction in international law?

BELLINGER: Well, we hadn't quite gotten there yet. But I think that people are beginning to refine these terms.

Three points. One, the -- actually, the legal theory of the Bush administration was not that we were relying on a new preemption theory in using force against Iraq. it was that we were relying on the existing Security Council resolutions which existed for 10 years that authorized the use of force against Iraq to force them to comply with their existing U.N. Security Council resolution obligations.

So President Clinton had relied all the way through the '90s, when he was enforcing the no-fly zones or knocking out missile launchers in Iraq -- was he doing that illegally? No. His theory was that the existing U.N. Security Council resolutions gave him that authority.

And the Bush administration's theory -- and you can say, well, knocking out missile launchers and no-fly zones is much different than an invasion of a country. But the theory was that the existing Security Council resolutions gave that authority. It was not a broad, new authority of preemption.

The debate right now amongst international lawyers is that preemption, if it's real anticipatory self-defense, that you are really anticipating an attack that is imminent, is okay, if that's -- under international law, if you define preemption in that way.

But if you define preemption as what -- some people would say preventive, or what some people thought was in fact the Bush doctrine, that you could wait, look way, way, way, way, way out and prevent something that you thought was coming -- that's sort of more where the argument is, is that --

How far in advance do you have to anticipate -- and the requirement for an imminent threat and an imminent attack -- to anticipate how much is imminent when you're talking about nuclear weapons?

TOOBIN: Matt?

WAXMAN: Yeah. I would add to that I think there's actually a long history within the United States and the U.S. presidency of relying on preemptive self-defense. We very rarely use that publicly as our justification. John's right.

Most people, I think, most informed observers believe that a preemption doctrine was the legal, the official legal position of the United States government for the Iraq War, and it wasn't. It was -- the United States officially relied on U.N. Security Council Resolution 1441.

Turn back the clock 40 years to the Cuban missile crisis where, again, I think the United States, in adopting the blockade, called a quarantine, and considering the use of air strikes against targets in Cuba, was exercising and considering exercising what would be a preemptive use of force.

But it didn't want to make that argument publicly, because that unleashes -- once you start expanding the rules of self-defense, you may open that aperture too far.

So again, in the Cuban missile crisis, the United States didn't say we're relying on a new right of preemptive self-defense that's necessary in a nuclear world. It used this argument that the OAS had approved the quarantine.

But -- under, I think, a good reading of the U.N. Charter, that doesn't get you there, but it was better than articulating a broad preemptive doctrine that might boomerang and come back to hurt us.

But I think the broader point is that, as John suggests, the traditional rules of anticipatory self-defense, which say that you can use self-defense when an enemy attack is imminent, that kind of rule is hard -- which grew out of a world of state versus state, conventional army against conventional army, where you could usually recognize an imminent attack coming.

That rule doesn't serve us very well, doesn't meet our security requirements in a world of weapons of mass destruction proliferation, when we don't even have accurate intelligence, absolute certainty about whether a state has or does not have those weapons of mass destruction.

And look back, with respect to all three axis of evil countries -- Iraq, Iran, North Korea -- there were either huge errors or huge gaps in our intelligence with respect to exactly what WMD capability do those countries have. And those are the ones that we're focusing our intelligence assets on.

So I think the traditional rule of anticipatory self-defense is difficult to apply and use to meet our security requirements in this era of proliferating weapons of mass destruction.

Is the right alternative to articulate instead a broad doctrine of pre-emptive self-defense? I don't think so. I agree with David that policy makers need to be prepared to act under some legal risk, but there are some real downsides to actually trying to codify a new doctrine of the use of force.

TOOBIN: Let's try to get some more questions in. How about this gentleman in the front there.

QUESTIONER: Herbert Levin.

Could you give us the European definition of universal jurisdiction, our definition of universal jurisdiction, and a couple of examples where it's been applied where you think it may have been right? There are a number out that we think are wrong.

TOOBIN: And maybe if I could just add to that, this famous Spanish judge/prosecutor, has talked about bringing cases against Alberto Gonzales, John Yoo, Jay Bybee -- I think that's all. Talk about that possible case in terms of this question.

BELLINGER (?): Well, that one actually is not a case of universal jurisdiction, as I understand it.

I think we and Europeans agree on the definition of universal jurisdiction, which basically means criminal jurisdiction over a crime that has occurred in some other country that doesn't involve an offense against you, the host nation, or your nationals, and that you are asserting criminal jurisdiction simply because the crime is of such enormity and magnitude that all states can criminalize it without any other jurisdictional hook.

And a number of countries have got -- and so it's a principle of international law that you can do that. The individual countries then may put that into a domestic criminal statute which says that someone can bring a complaint in, for example, Belgium or Germany for a violation of war crimes or genocide or torture in a particular country with no nexus otherwise to that country.

Now, the United States tends generally to be critical of universal jurisdiction, although on the other hand, we exercise universal civil jurisdiction quite often, and we would treat piracy as an example of universal jurisdiction.

The reason I --

TOOBIN: Is that the theory why that kid, or whatever he is, is here --

MR. : Well, no, because -- (cross talk) -- against America. That gets -- (cross talk) -- a little more complicated. But your seminal point is correct.

BELLINGER (?): The last point on Garzon, as I understand it, he was asserting jurisdiction because there were Spanish nationals in Guantánamo who were ultimately returned to Spain. And he, as I understand it, is claiming that the whole Guantánamo system violated international law as applied to the Spanish.

So just the same as if an American was mistreated in Spain, we would feel we could prosecute some Spanish policeman.

SCHEFFER (?): I'd just jump in quickly. Of course, we were first really introduced in contemporary times to this doctrine with the Pinochet case, where the British House of Lords examined, and the issue -- and various lords had different opinions about how extensive the doctrine of universal jurisdiction is.

Different judges on the International Court of Justice have had different opinions about how extensive this doctrine is, to what extent it should be complied with, et cetera.

I would just make this one little point. Even in Spain, you see moves now at the governmental level which are similar to what happened in Belgium during the Bush administration where there was a clawback on how extensive the domestic law of universal jurisdiction really could be applied. Because at that point they wanted to indict Donald Rumsfeld in Belgium, and he said oh, I'll never land there for a NATO meeting if you do this.

The government clawed back the statutes of the law of Belgium that enabled a more, shall we say, pragmatic exercise in diplomatic relations.

Spain is now considering this with respect to the law that Judge Garzon has sought to apply with respect to Bush administration officials. They are thinking now of clawing back their universal jurisdiction law, which is not strictly entirely universal jurisdiction, but close to it.

Just one final point. This whole debate about the International Criminal Court and concerns about it, understand all of the points out there and the legitimacy that they seek to invoke.

The real threat actually comes from national courts that are seeking to exercise universal jurisdiction. You see this playing out now in real time. It is in Spain where it's playing out.

So the argument that somehow we cannot tolerate the International Criminal Court because of the fear of universal jurisdiction which, in fact, the Court does not have, is actually a greater threat today from national courts that are simply enacting national laws of universal jurisdiction than they are from what might be considered a more conservative International Criminal Court.

QUESTIONER: (Off mike.) Who would initiate this on the American side, the attorney general of Alaska or somebody? Who starts this moving?

SCHEFFER (?): Well, can I -- I think I can quickly say this.

Interestingly enough, in federal law now we have two new laws, the Genocide Accountability Act and the Child Soldiers Accountability Act, which has a fairly -- it's not total universal jurisdiction, but it basically means if you're a foreigner and you've committed genocide overseas and you decide you want to come to Florida and live comfortably in that nice home, we can prosecute you.

You didn't commit it in the United States; there are no U.S. victims; we can prosecute. Same thing with child soldier recruitment and use.

The third one up is Trafficking in Humans Accountability Act, and that has passed the Senate. I know it still awaits action in the House. Same idea. You traffic in humans, you decide to come and vacation or settle down in Florida, we will now prosecute you.

It doesn't matter -- there doesn't have to be any other nexus other than your physical presence in the United States to take you down.

So even in the United States we're starting to chip away at this. But again, an important nexus -- you physically have to be here, and then we can take you.

TOOBIN: Let's try to work in a few more questions. Right up here in the front?

QUESTIONER: Thank you. Larry Johnson, Columbia Law School, formerly of the U.N. One of those bureaucrats sitting in an office giving instructions to the U.S. (Laughter.) But my recollection, it was the other way. (Laughter.)

Anyway, a question for David. Your hypothesis that you could indeed use force in exceptional circumstances, responsibility to protect and to do something to stop genocide -- necessity, force majeure and so on. And then admit it and say look, we know we're doing this, but we -- we're responsible for this.

How do you avoid -- and Matt was alluding to this -- a slippery slope? How do you avoid somebody else doing that, saying the same thing? I think the Russians did the -- made that argument in going into Georgia, to protect the South Ossetians.

And the second question for John, in terms of ICC. A few -- is it possible to do a few things without the big review, such as the Obama administration going to the meetings as an observer, sitting to see whether they want to become a member of this club or whether they're all wacko and we don't want to have anything to do with them? Or do you think that's a halfway house?

TOOBIN: If you could both try to answer real quick, so we could just (hand ?) another question --

SCHEFFER: Very bluntly, you don't avoid the question. It is -- it's not a question that has an easy, simple answer.

The easy, simple answer is yes, let's go out there and change all the rules and make everyone comply with new -- brand-new rules. But that's not going to happen. Meantime, atrocities occur, and we keep struggling with this issue of how do we respond to atrocities.

So I think if our response in terms of the use of military force is a, frankly, in the most realistic context, a very rare use of it in this context, not a frequent use of it, and one which, as I explained, requires a tremendous amount of preparatory work with the international community to prepare them for that use of military force, then yes.

Sometimes we have to be prepared to respond to a situation where another major power may in fact take that issue up itself, but it's going to be judged on the same standards that we were judged on; i.e., are you seeking to save the lives of 40,000 people or not?

BELLINGER: And very briefly on the ICC. Yes, excellent question, and this is in fact the big discussion right now. David's written a paper on the things that President Obama can do. (Inaudible) -- he hasn't even begun yet. I think it again shows the people aren't in place.

But he will almost definitely have a warmer relationship in tone, go to more of the meetings, the assembly of state parties. I would actually predict that he will so-called "re-sign" the Rome Statute as a sort of a symbolic undoing of the Bush administration step. I think he will provide more cooperation with the prosecutor in more cases.

These -- the latter few were some things that we began in our second term with Secretary Rice's direction that support the referral of the Darfur situation to the prosecutor and (offer ?) help.

TOOBIN: Let's just do these two questions right here -- this gentleman and this woman over here -- and then we'll be done.

QUESTIONER: Donald Shriver.

What is the current status and the possible future of the U.N. discussion of the responsibility to protect, indeed, vulnerable populations within the bounds of a certain country?

MR. : Just quickly?

TOOBIN: Quickly. Very quickly.

MR. : A large paper just issued a couple of months ago by the U.N. Special Representative on this, who happens to be Ed Luck at Columbia -- I think is still at Columbia somehow, right, Larry?

And it's a very revealing paper, because he really tries to bring us up to date on all of the difficulties and obstacles, but also opportunities within the United Nations for the responsibility to protect.

Bottom line, very conservative approach, one that reflects the deep concerns of many countries that R2P might get out of control. And therefore, it -- I think the bottom line is a fairly limited range of advancement on that issue. It's still on the table, but it's going to be a very cautious, step-by-step process.

QUESTIONER: (Off mike.)

Matthew, you cited Rice's statement that we would reserve the use of force in a case like Darfur. I find that unimaginable. That's an application of humanitarian intervention.

And if the United States were to act unilaterally in that case, that'd mean we had (fluffed ?) on every effort across the board to gain some kind of a consensus.

Retaining the right to use your force unilaterally, I can see in case of threats, which you've been discussing -- (inaudible) -- but not in the case of humanitarian intervention. And the law is evolving very slowly toward a consensus, whether it's in the right to -- responsibility to protect.

So I wouldn't push that argument at all. I think that -- the U.S. would have to build some real big consortium, as we did in Kosovo. And in Kosovo we did so under the rubric of NATO, because we couldn't get the Security Council to --

WAXMAN: Yeah. And I doubt the United States would actually ever want to act completely unilaterally, right? It would be probably a coalition of the willing-type situation. The United States would probably want to do it under the rubric of another -- of an international organization like NATO if it were able to, to dress it up with additional kind of institutional legitimacy.

But when you read the secretary-general's report that David mentioned on responsibility to protect, it talks about the primacy of the U.N. Security Council, and says that this is a mature concept that's going to be administered, applied by the U.N. Security Council.

It doesn't really answer the hard question of what happens when you have gridlock, deadlock in the U.N. Security Council. Is there some residual safety valve for -- if not unilateral, at least intervention outside of the U.N. Security Council framework?

TOOBIN: With that, David Scheffer, John Bellinger and Matthew Waxman, thank you very much, and thank you all for coming.

(Applause.)

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