Hard facts and soft law: what's the evidence?

About the authors
David Winickoff is a post-doctoral fellow in the Program on Science, Technology and Society at the Kennedy School of Government, Harvard University. He has written articles on the interaction of law and science in fields including bioethics, biotechnology and international law.
Sheila Jasanoff is Pforzheimer Professor of Science and Technology Studies at Harvard University’s John F. Kennedy School of Government. Trained in law at Harvard Law School, she has written many books and articles on the role of science and technology in the authority structures of modern democratic societies.

Since the Bush administration intensified its talk of war on Iraq, the world’s attention has focused unremittingly on US unilateralism. Here is a nation, critics charge, so intoxicated with power that it shamelessly flaunts its military strength, acts dismissively toward its allies, and threatens to plunge a volatile part of the world into chaos, in order to advance its selfish economic and political ends. Yet, almost unnoticed in this din, a new chapter is being written in the evolving ‘soft law’ of nations – that is, not in formal treaties but in the unwritten rules of international behaviour. This development has to do with accountability as much as with power.

America’s Iraq policy has laid the basis for a new conversation on the manner in which the exercise of force, unilateral or otherwise, must be justified before a multilateral audience. Debate has shifted from the justice or injustice of intervention to what evidence must be displayed, to whom, and in what forms, before any nation embarks on potentially destabilising action.

This shift was marked in President Bush’s ‘case for war’ before the United Nations on 12 September and put before the American people on 7 October . Bush made his arguments not only in the language of traditional international law, condemning Iraqi aggression, but also in a new language of criminal prosecution and proof: ‘The evidence indicates that Iraq is reconstituting its nuclear weapons program,’ he argued in a stance that was more Chief Prosecutor than Chief Executive, and ‘satellite photographs reveal that Iraq is rebuilding facilities at sites that have been part of its nuclear program in the past.’ This means that the issue of what makes evidence acceptable is suddenly at the forefront of international relations.

It is important to spell out the principles that the Bush administration seems to be articulating in this regard, before we outline some contradictions in America’s approach. We contend that the United States has accepted the need for evidence in cases of armed intervention, and that this is a major advance in international relations. However, we also find three major weaknesses in the US position: first, the failure to acknowledge how facts gain credibility and become evidence, especially for a global audience; secondly, the adoption of a double standard for the transnational adjudication of facts; and, thirdly, an inconsistent approach toward precaution and proof in international affairs.

Evidence and intelligence

The Bush administration would like the world to believe that Saddam Hussein is systematically accumulating chemical, biological and nuclear weapons of mass destruction. It is largely this assertion that justifies the policy of war. Yet, the factual cornerstone for US policy remains contested, and it is no surprise that the world refuses to go along. Calls for evidence and proof of the asserted facts have led to the production of ‘dossiers’. These dossiers apparently convinced Tony Blair of the facts and the policy they underpin. Others, however, remain unconvinced, asking whether war is justifying the facts, or facts the war.

For insights into this scepticism we turn to the sociology of science. Sociologists of science have long demonstrated that knowledge claims are most likely to be accepted as facts when the assumptions and practices of fact creation are widely shared – in short, when there is a shared culture of knowledge production. Scientific facts cannot simply be presented as true and achieve acceptance as such. Rather, they must be negotiated among researchers, peer reviewers, journals, and wider publics.

Negotiations of fact go smoothly when the associated methodologies and interpretive conventions are securely established and uncontested. In these cases, there is a shared ‘scientific method’, which is satisfactorily policed by the procedures of peer review and replication. Facts produced through such methods claim to be more objective than other forms of knowledge. But what makes scientific facts objective is the prior understanding among scientists that the facts were produced in the proper manner and that there is a proper way to interpret them. Scientists, too, must bear witness to each other’s work, and a key necessity for this purpose is transparency. When transparency and standards break down, science suffers, as in recent well-publicised cases of scientific misconduct.

In the debate over Iraq, it is patently clear that there is no shared methodology of knowledge production that is acceptable to the world community. Much of America’s suspicion rests on ‘intelligence’ provided by the Central Intelligence Agency (CIA). The Bush administration repeatedly conflates ‘facts’ and ‘intelligence’, as if they were the same thing, and independent of the agency that produces them. But the rest of the world is not privy to the CIA’s methods of gathering ‘intelligence’ and sees only an agency that has done little or nothing to establish trust on the world stage. That the CIA happens to be embroiled in scandals even within the United States only increases suspicion about its assertions and methods. Crucially, too, ‘intelligence’, unlike scientific fact, grows from a culture of hidden methods and premises. US intelligence cannot easily provide the basis for multilateral action when its very secrecy frustrates common witnessing and shared standards of proof.

Double standards

In acting as the world’s self-proclaimed prosecutor-in-chief, President Bush has implicitly cast Saddam Hussein in the role of international criminal. Saddam’s violation of human rights at home and his threat to civilians abroad are presented as acts beyond the pale of international law and order. The Iraqi leader not only holds weapons that pose a military threat of mass destruction. He is also a ‘tyrant’ and ‘dictator’, as Bush said in Akron, Ohio, ‘a student of Stalin, using murder as a tool of terror and control, within his own cabinet, within his own army, and even within his own family.’

Fair enough. Yet the very US administration that wishes to set the standards for judging Saddam’s criminal behaviour on the world stage has earned the world’s opprobrium by refusing to accept the jurisdiction of the United Nations (UN) International Criminal Court. One law for the United States, another for the rest of the world – that is the double standard the Bush administration apparently espouses. But it is an uncomfortable standard for a superpower that wishes to try Iraq’s dictator in a virtual criminal court of world public opinion. There is a real court the world has made to further the goals of universal justice and universal human rights. Granted, this may as yet be an imperfect institution. But to reject it summarily, while aggressively prosecuting Saddam on American terms, is to solicit disbelief, and worse. Double standards are double-edged; they can bite back.

Prevaricating with precaution

The Bush administration’s view that war is necessary and justified also rests on a precautionary approach to risk. The argument is that, given the intelligence we have and the evidence cited in dossiers and speeches, not to act now would be irrational. This position was most explicit in the Akron Speech, where Bush drew support from President John F. Kennedy’s reasoning in the Cuban Missile Crisis:

‘…Facing clear evidence of peril, we cannot wait for the final proof – the smoking gun – that could come in the form of a mushroom cloud. As President Kennedy said in October of 1962, “…We no longer live in a world […] where only the actual firing of weapons represents a sufficient challenge to a nation’s security to constitute maximum peril.”’ (President Bush, speech in Akron, Ohio.)

Precaution, as we know, justifies regulatory action based on a lowered threshold of proof. But invoking an implicit precautionary principle to justify pre-emptive military strikes on Iraq raises questions about the coherence of the US position.

The Bush administration has notoriously rejected the precautionary principle in relation to climate change, refusing to comply with the Kyoto Protocol on the ground that precaution would be too costly given uncertain risks. In effect, the administration’s strategy is more precautionary with respect to the health of the US economy than with respect to the health of the world’s environment. Quite apart from any technical arguments about the merits of the Kyoto accord, we see that standards of evidence and proof are again at the heart of international conflict. In the case of climate change, the US government, alone among major powers, is not compelled by evidence of the need for precaution. In the case of Iraq, the same US government wishes its allies to fall in line with US tests justifying precautionary action.

This contradiction underscores our earlier point about the rules of evidence in international affairs. While a precautionary approach to risk (whether military or environmental) is an emerging global norm, this principle cannot be translated into action in particular international conflicts unless more attention is paid to nurturing a common language of risk and a common law of evidence. Trust and credibility are essential in creating these sorts of shared standards. Nothing so undermines trust as the perception that powerful actors are using principles selectively, to serve their self-interest.

Conclusion

Whatever the outcome in the Gulf in the next few months, the public debate on Iraq has opened a progressive chapter in international relations. Besides the talk of aggression and war, the discussion has drawn on the languages of criminal and administrative process. International law is thereby enriched, and a new soft law of evidence is in the making. This is altogether positive in a world desperately searching for supranational order.

US leadership will be pivotal in building the soft law of nations, but leadership cannot be effectively exercised by an unruly giant who behaves without consistency or coherence. Both law and the sociology of science point to the same remedies. To act credibly on the world stage, the United States will have to follow the rules for building global norms of credibility. Common understandings of evidence, in particular, can only grow in a culture of transparency, shared standards, and principles that equally constrain all parties, regardless of their position in the hierarchy of power.