Reflections on force and evidence.

Author:Franck, Thomas M.
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

Monday's New York Times (March 27, 2006) carried yet another embarrassing story based on leaked British government papers that purport to summarize discussions between President Bush and Prime Minister Blair.

This time it was a memo written by David Manning, Blair's chief foreign policy adviser, summarizing a meeting between his chief and President Bush, in the Oval Office, on January 31, 2003, less than six weeks before the invasion of Iraq. In this meeting between the two leaders, supported only by a handful of close advisers, the president makes clear to the prime minister that he intends to launch the attack on Iraq by March 10 and to do so regardless of whatever the UN inspectors led by Dr. Hans Blix, may or may not turn up by way of evidence of weapons of mass destruction.

This is a new reminder of what, by now, is an old story: that the decision to invade Iraq was not based on serious evidence of Saddam being in possession of weapons of mass destruction and having the capability to deliver them to targets as far away as Europe.

It is also a reminder of the important but ambiguous role that evidence plays in the global security system. Only a few days after this White House meeting, Secretary of State Colin Powell was at the Security Council, presenting his evidence to support the call for a second resolution finding Iraq in non-compliance with its obligation to disarm, and authorizing the use of force.

These events are important because the failure of the Security Council to pass that second resolution has been continuously held up by the president and others to illustrate the folly of relying on the UN Charter system to protect global security. In the president's words, it justifies the conclusion that we will never submit to a system that requires us to obtain a permission slip to defend the security of the United States. He and his vice-president made that a centerpiece of their reelection campaign and, for that matter, were able to wring a meekly concurring statement from Senator Kerry. The import of that position is that the United States no longer considers itself bound by the UN Charter's constraints in Article 2 (4), which prohibits first use of force, and Article 51, which permits recourse to force only in the event of an armed attack. Indeed, the president has stated, and recently repeated, that the United States has the right to use force preemptively, and not only in situations where an attack is imminent.

The Bush Administration acts as if to scuttle the UN collective security system. By way of justification it asserts that the system has failed, a failure most recently demonstrated by its weakness in facing down a defiant Iraq. We tried to play by the roles of the Charter, the song goes. We dutifully went before the Security Council to get that first resolution, the one...

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