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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.



Fordham International Law Journal




2 - Regina A. Loughran Memorial Issue

Article number



337 - 381


Fordham University * School of Law


New York, N.Y.





Publication classification

C Journal article; C1 Refereed article in a scholarly journal

Copyright notice

2018, The Authors

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