Questions of Fact and Evidence and the Laws of Force
Kritsiotis, Dino, Proceedings of the Annual Meeting-American Society of International Law
The panel was convened at 9:00 a.m., Thursday, March 30, by its chair, Dino Kritsiotis of the University of Nottingham, who introduced the panelists: Thomas Franck of New York University School of Law; Marie Jacobsson of the Foreign Ministry, Sweden; Mary Ellen O'Connell of Notre Dame Law School; and Therese O'Donnell of the University of Strathclyde.
QUESTIONS OF FACT AND EVIDENCE AND THE LAWS OF FORCE
This panel has been convened in order to discuss questions and fact and evidence as they relate to the international legal regulation of force.
The topic has gained particular importance in recent years, in view of the increased litigation of "force" cases before the International Court of Justice, and of the resulting concentration on these questions in the Court's jurisprudence. We should observe that this cadre of cases falls into line with the need for demonstration or the "evidential challenge" which the Court issued to accusing states in the very first contentious case to come before it--the Corfu Channel litigation between the United Kingdom and Albania. (1) However, as we have also learnt from the Oil Platforms Case of November 2003, the Court's pronouncements on evidence bear additional importance for the revelations which these might announce for the law itself, for the substantive content of the lex lata. There, the Court remarked that "[t]here is no evidence that the minelaying alleged to have been carried out by the Iran Ajr ... was aimed specifically at the United States." (2) Our immediate instinct is to shelve this observation as an evidential matter when it is, in fact, also suggestive of a further element in the Court's evolving definition of the concept of an armed attack--that of the intention of the attacking state--and could well mark out the Court's future argumentative and evidential expectations when confronted with claims involving the right of self-defense. (3)
All of this is to say nothing of the diplomatic history that has presented "evidence" to the court of political and public opinion in the anticipation or explanation of force--the historic presentation by U.S. Secretary of State Colin Powell to the Security Council on February 5, 2003, drawing immediate correlations with U.S. Ambassador Adlai Stevenson's photographic showcase to the Council concerning Soviet missile installations on Cuban territory in October 1962. (4) Evidence therefore matters outside the hallowed chambers of the International Court of Justice as much as it matters within it. A failure to produce evidence--or the right sort of evidence, or enough of the right sort of evidence might not only prove problematic but fatal to the case a government is seeking to make. We might cite in this regard the claim of self-defense made by the United States for Operation Infinite Reach in August 1998, (5) where reason was given to distinguish the force used against the Sudan from that under-taken against Afghanistan on the grounds of the differing viabilities of the evidence(s) rendered. …