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Facts, alternative facts, and International Law

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Phillipa Weeks Staff Library

ANU College of Law

5 Fellows Road

The Australian National University, Acton 2601

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Experimental data on the impact of legal investigations on wartime controversies

January 4, 2009: the 17th day of Israeli military offensive in Gaza begins: Palestinians report that Israeli forces fire several projectiles at the Al-Samouni family house, were dozens of unarmed civilians took shelter, killing 21 family members and injuring 19. Israeli military authorities reject this description, arguing they were targeting a group of terrorists holding RPG rockets. To resolve the controversy, the UN Human Rights Council established an international fact-finding mission, headed by South-African judge Richard Goldstone. In its final report, the Mission determined that the attack on the Al-Samouni home was intentional and constituted a crime against humanity. However, the release of the Report did not resolve the controversy: Israel rejected the report as biased and unfounded, Goldstone himself published an Op-Ed retracting some of his original conclusions, the international debate about “what really happened” that day intensified, and the Report became, in itself, a part of the conflict.

The Goldstone Report exemplifies a broader phenomenon, of backlash against international institutions, and specifically against fact-finding efforts and dissemination of information during armed conflicts. This article analyzes common practices of legal fact-finding during armed conflicts, and examines their impact on factual beliefs held by the relevant societies. It builds on studies from three disciplines – law, psychology, and political science – and employs experimental methods and a rich case study analysis (including an interview with Richard Goldstone) to shed light on the way in which legal fact-finding efforts influence beliefs about contested events such as war crimes and crimes against humanity. It provides theoretical explanation and empirical data to illuminate why more information may sometimes mean less shared knowledge; why do many fact-finding efforts fail to resolve the very controversies they were established to settle?

The article argues that the unnecessary adoption of legal standards and legal blame triggers cognitive and emotional biases that may unintentionally intensify distortion (rather than assertion) of facts. This unintended consequence of legal analysis is particularly detrimental for international fact-finding bodies, because, in contrast to international tribunals, they suffer from an enforcement deficit and are therefore designed to influence their intended audiences through soft power, dialogue, and persuasion. To provide systematic evidence of the consequences of legal fact-finding on people’s attitudes and beliefs, this article reports data from a large-scale experiment fielded in Israel in January 2017 with a representative sample of 2,000 Israeli nationals. The findings suggest that the Goldstone Mission’s decision to center its fact-finding efforts around the legal interpretation of the facts was counter-productive, at least with regard to the goals of ameliorating processes of denial and rejection of information.

Ultimately, the article argues that in our 'fake news' era, where 'alternative facts' are often produced to counter unwelcome facts and narratives, it is more important than ever to seek new and better ways to produce and introduce information during armed conflicts.

Shiri Krebs is a Senior Lecturer and Director of HDR at Deakin Law School, as well as a Law and International Security Fellow at Stanford University. Her expertise is in international fact-finding, conflict resolution, international and national security, and the laws of war. Her research focuses primarily on the complex relationship between legal rules and fact-finding, at the intersection of law, politics, and social psychology. She has taught in a number of top law schools around the world, including Stanford University, the Hebrew University of Jerusalem, and Santa Clara Law University.

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Phillipa Weeks Staff Library

ANU College of Law

5 Fellows Road

The Australian National University, Acton 2601

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