Evidence as an issue in international legal practice.

Author:Jacobson, Marie
Position:The Laws of Force and the Turn to Evidence - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

President John F. Kennedy shocked the citizens of the United States on October 22, 1962, when in a television speech to the nation he revealed that the United States had clear evidence of Soviet installations of missiles on Cuba--missiles that contained nuclear devices that could reach U.S. soil.

The Security Council met the following day, on October 23, 1962. Following a tense and short conversation between the U.S. Ambassador to the United Nations, Adlai Stevenson, and the Soviet Ambassador Valerian Zorin, Stevenson made his dramatic move. Like the unveiling of an artist's painting, Stevenson unveiled photographs taken by U-2 reconnaissance planes. The pictures clearly showed the Soviet installations. The move was a success. (1)

More than 40 years later, on February 5, 2003, U.S. Secretary of State Colin Powell attempted to repeat that successful move. Using modern media technology--audio, visuals, and monitors--he spoke for more than an hour and showed pictures in order to reveal that Iraq had weapons of mass destruction. (2) That move was not a success.

* Why were the pictures shown by Stevenson accepted as "evidence," while the pictures shown by Powell met with scepticism?

* Why would these events be of an interest to a government lawyer?

The two cases show that there is a thin line between what is considered evidence of a fact and what is not. The political context is crucial. No one could possibly argue that the pictures Ambassador Stevenson showed to the Council were the ultimate evidence of the installation of missiles on Cuban territory. Likewise, Secretary Powell's pictures might have been true evidence of weapons of mass destruction.

International relations and international politics are not questions of proof in the legal sense of the word. Evidence, proof, and burden of proof belong to the sphere of courts, trials, and justice--or, for that matter, to mathematics and philosophy. Yet the two spheres, the political and the legal, are bound to meet--in particular when critical political and legal issues are at stake. A reversed situation might then arise: politicians require "proof" and courts evaluate evidentiary material.

There is an abundance of international relations theories on how to interpret political incidents and developments. Governments and politicians act on signals. In a sense, this is no different from how human beings act in other contexts: in our personal relations and in our daily lives. We do not normally wait for "evidence" in all situations and all contexts-if, that is, it can be produced at all. We tend to act on speculation and on more or less qualified calculations, in the end, an immediate reaction might be a matter of survival.

But states and governments bear a special responsibility when it comes to reacting on...

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