The Art of Facts

A LEGAL BLOG about Fact-finding and Armed ConflicTS

Getting the facts AND the law right

I am aware that after a few months any new blog runs the risk of repetitions. But I am also convinced that many issues I have alluded to since I started my new life as an “intermittent blogger” deserve further exploration. So I decided to write few more lines on the complex interaction between the facts and the law in the field of fact-finding.

This could be a non-issue. Indeed one may wonder why fact-finding would have anything to do with the law. After all, bodies involved in such activities are by nature primarily concerned with making factual findings. Understandably, as a result, a large part of the research, projects and literature on fact-finding have been focusing on the various aspects of establishing facts, and much less on the surrounding legal questions. This changed as commissions of inquiry and fact-finding bodies have been increasingly mandated to investigate human rights and International Humanitarian Law (IHL) violations. This lead Dapo Akande and Hannah Tonkin to ask in a post on the EJIL: Talk! Blog whether commissions of inquiry are a new form of adjudication.

There is a myriad of legal issues arising from the work of fact-finding bodies. For example, in a recent and very interesting paper, Dov Jacobs and Catherine Harwood analyse the migration of International Criminal Law concepts into the work of international commissions of inquiry and its impact on international fact-finding. They suggest that while this trend may be beneficial in improving the “quality” of fact-finding, and hence the credibility of the conclusions, it also raises several challenges (see “International Criminal Law Outside the Courtroom: The Impact of Focusing on International Crimes for the Quality of Fact-Finding by International Commissions of Inquiry”).

Of course, for any type of fact-finding to be meaningful it needs to be credible. This requires a sound and elaborated methodology following a minimum standard of proof to establish facts. So far credibility related to how facts are ascertained, such as questions around the type and reliability of sources used. Conversely, as fact-finding bodies are increasingly called to make legal determinations and interpret existing unsettled rules or concepts of international law, these mechanisms’ role and practice in this regard attract more legal scrutiny.

There is an inherent relationship between the facts and the law, and separating the two elements may be difficult when investigations are about allegations of human rights violations. As Jean Salmon noted the expression ‘ascertaining’ facts is misleading as it suggests that the operation is about ascertaining an objective phenomenon that would then be ‘confronted’ to the legal norm. On the contrary, the law influences the facts in many respects; for example, this author suggests that the relevance of a fact is linked to the choice of the applicable law (see here, p. 296). The facts covered through an inquiry are indeed framed by the elements of the very rule allegedly violated and it is only through legal expertise that one can select the relevant facts from the huge quantity of information around a given incident.

A set of legal issues arises then when facts relate to certain rules that are controversial or unclear. This is particularly the case in the field of IHL norms regulating the conduct of hostilities. In a publication on “Credible Fact-Finding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice”, I identified some of those challenges. For example the way norms regulating the conduct of hostilities are designed calls for establishing certain facts that are difficult to verify. In addition, fact-finding must cover all factual elements of these norms in order to be able to reach a legal conclusion, such as aspects related to the attacker, the way weapons were used, the nature of the target, the effects of the attack and the defender. There is a constant challenge of taking into account two perspectives. The first one concerns the issue of time. The legality of an attack depends on an ex-ante evaluation by the attacker, while the facts are established after the attack (ex-post). The other aspect is to look at the actor involved, i.e. the attacker or the defender. For example the concept of military objective depends on the plans of the attacker and the perceived behavior of the defender.

It is therefore crucial to get the facts AND the law right as the way fact-finding bodies apply the law can affect the credibility of the findings as much as the methodology used to establish the facts. In a recent research paper (Selecting and Applying Legal Lenses in Monitoring, Reporting, and Fact-Finding Missions, see here) I drafted for the Harvard Group of Professionals on Monitoring, Reporting, and Fact-finding, I reviewed the work of some 15 fact-finding missions and commissions of inquiry. This paper describes and analyses the current practice to identify strengths, gaps, and challenges, in order to present options to improve the ways practitioners involved in Monitoring, Reporting and Fact-Finding activities articulate and apply legal frameworks. While one cannot expect fact-finding missions to qualify every single legal issue, nor elaborate too much on legal details or the content of the law given, it seems that greater awareness and legal justification of some issues could improve the consistency and credibility of fact-finding bodies’ conclusions.

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