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Designing international fact-finding: facts, alternative facts, and national identities

journal contribution
posted on 2018-02-06, 00:00 authored by Shiri KrebsShiri Krebs
One of the most certain facts about conflicts is uncertainty about facts. To establish the truth and find out what really happened, the international community has been sending fact-finding missions to conflict areas around the world. These missions have been designed to produce legal reports, based on binary legal dichotomies. This article builds on social psychology studies to argue that these missions’ reliance on abstract and adversarial legal norms triggers backlash and rejection of factual findings by the perpetrators’ societies. Instead of agreeing on a simple set of brute facts, such as the number of fatalities, or concrete causes of death, the focus of attention is shifted to abstract legal norms and to the threat they pose to collective beliefs and identities. Focusing on the U.N. Fact-Finding Mission on the Gaza Conflict as a case study, this article demonstrates how international efforts to provide conflicting societies with new, credible facts may instead end up intensifying the conflict over ‘what happened.’ Particularly, the article sheds light on several contemporary challenges to international fact-finding, including their factual contingency, their ambiguous goals and flawed institutional design processes, and their dissemination deficit. Based on an interdisciplinary normative framework and empirical analysis of the Goldstone Mission, the article suggests a new framework to design international fact-finding missions. First, the concept of truth should not be associated exclusively with legal truth, and facts should not be interpreted and evaluated based solely on legal categorization and interpretation; second, long-term goals should be carefully clarified, prioritized, and tailored to the concrete social circumstances; third, fact-finding processes should be matched with the mission’s core goal, with a special attention given to institutional structures, participation, and social legitimacy. Finally, in this era of constant challenges to knowledge and information, where ‘alternative facts’ are frequently produced to counter unwelcomed information, and when critical findings are denounced as ‘fake news’, international fact-finding missions should be sensitive to the various contingencies of their findings, and adopt a humbler approach concerning the ‘indisputable’ nature of these findings. By reimagining international fact-finding and rethinking their design processes, International fact-finding missions may contribute to dissemination of threatening information during intractable conflicts in a way which is unattainable by existing legal institutions.

History

Journal

Fordham International Law Journal

Volume

41

Article number

2

Pagination

337-381

Location

New York, N.Y.

ISSN

0747-9395

Language

eng

Publication classification

C Journal article, C1 Refereed article in a scholarly journal

Copyright notice

2018, The Authors

Issue

2 - Regina A. Loughran Memorial Issue

Publisher

Fordham University * School of Law

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