Professor Thomas Franck Speaks on the Role of Evidence in the Global Security System
The U.S. government's unilateral decision to go to war in Iraq, in derogation of the procedure set out in the UN Charter and in pursuit of its policy of preemption, serves as a reminder of the important role of evidence in the global security system, according to Professor Thomas Franck, the Murry and Ida Becker Professor of Law Emeritus at New York University.
Speaking before students and faculty of The Fletcher School on April 10th, Franck said that the recently reported conversation that supposedly took place between President George Bush and British Prime Minister Tony Blair less than six weeks before the U.S. invasion of Iraq in March 2003 serves as another reminder that the decision “was not based on evidence of Saddam Hussein possessing weapons of mass destruction (WMD) and having the capability to deliver them” but on a “predetermined policy to pursue the war regardless of whether an affirmative resolution was secured from the UN Security Council (SC)”.
Franck said that the failure of the UN SC to pass a second resolution has been held by the President and other administration officials as an illustration of the “folly” of relying on the UN Charter system to protect global security.
“In the President's words, the U.S. will never submit to a system that requires us to obtain a permission slip to defend the security of the U.S.,” he said, stressing that the U.S. no longer considers itself bound by the UN SC constraints in Article 2(4) which prohibit the use of force, and Article 51, which permits the use of force but only in the event of an armed attack. “The President has stated that the U.S.' right to use force preventively is not limited to instances where an attack is imminent.”
Franck feels that this is an all-out blow to the global security system. “The effect of this is that other states, seeing that the U.S. is no longer willing to get a permission slip to use force, may not feel under much constraint either.”
“It is a clear statement of the most radical shift of American foreign policy since the end of isolationism. That's what makes it important. But what makes it ambiguous is that every presumption that underpins that radical shift is a lie”, he notes.
Franck claims that it was untrue that Iraq did not present the U.S. with any choice. The evidence presented by the U.S. to secure a UN Resolution was “laced with false information” about particulars, and was also “flat wrong” about its conclusion that Iraq manufactured WMD, he noted.
“The key parts of the evidence presented by Secretary Powell at that time did not show US intelligence gathering capabilities, but of our capacity to mislead, although he may not be aware of it at that time. I do not argue that we don’t have better intelligence gathering capabilities than the other members of the Security Council. We do, but Iraq proves that we do not necessarily make better deductions from the evidence that we have,” he said.
Franck said that the Iraq debacle proves that there are two requisites for one to be considered well-informed. “You need good intelligence, and sensible use of intelligence by policy-makers.” However, in the case of Iraq, he said that the administration “rushed to conclusions based on predetermined policy and disregarded evidence which proved inconvenient.”
The UN Charter is not perfect and is badly in need of reform, Franck noted. “But lack of reform does not seem to be the principal problem here. If the Charter had any purpose, it was to commit every state to renounce the pernicious right to judge for itself when its national interest requires a first strike against another,” he said, stressing that while “[t]he jury is not perfect, [it] is also not accurate to state that it is broken, especially by reference to Iraq.”
Franck identified the major issues which must be addressed by states.
“First, if the world is not to descend to chaos of unbridled sovereignty, then states must be willing to subordinate their unilateral assessments of the need for preemptive recourse to force to some form of credible international jury. The Security Council is endowed with such role. It may not be perfect, but there is no alternative. Find something else, or make do with it,” he said.
Franck said that with respect to any rule prohibiting the unilateral recourse to force, but permitting it under certain conditions, “the important thing is whether the conditions for waiving the prohibition have been met. While the U.S. may have had more intelligence information, that alone does not make it the best candidate to decide what to do and when to do it.”
He said that no international system, if it is to make any claim to regulate war, can delegate the function to every state that wishes to go to war. “That is why the system, like any good Constitution, has checks and balances if the world was not to stumble to nuclear disaster.”
Franck notes that the Security Council has not performed the jury function all that badly. “It has mostly, although not always, responded where the evidence was clear, and when it refused to respond as in the case of Iraq, the evidence turned out to be dubious, tainted and selective, and its non-response turned out to be the right answer.”
Finally, Franck said that the UN should address the matter of the frivolous use of the veto. “The veto has sometimes been used mendaciously, not the least by the U.S. The problem of the irresponsible use of the veto will have to be addressed by veto holders collectively through negotiations.”
During the open forum, Prof. Alan Henrikson inquired whether non-compliance with the provisions of the UN Charter on the use of force implies that it has fallen into “desuetude”.
Franck replied that desuetude is a very rare concept in law. “In order to prove desuetude, you have to establish that the rule has not been enforced for a long time. This is certainly not true with regard to the rule on the first use of force in the UN system. The UN has proved that there are situations where the use of force is more preferable than other alternatives, as for instance in Kuwait, the Congo, North Korea and Haiti. But there are also situations when the use of force would not be more preferable for varied reasons. For instance, it was the U.S. government's decision not to rescue the Tutsi in Rwanda, and we prevented any action from being taken,” he said.
Franck said that he does not see non-compliance with the UN Charter as a problem of desuetude but one of enforcement. “If the Security Council is almost entirely focused on a specific number of countries that habitually fail to perform, that does not mean that every country is now free to attack any other country,” he said.