The Art of Facts

A LEGAL BLOG about Fact-finding and Armed ConflicTS

Applying a Standard of Proof in Fact-Finding: The Challenge of Consistency

There is something slightly frustrating with managing a blog on a rapidly evolving topic: this format enables being reactive to comment on new issues as they arise, but it also requires a strict discipline and some free time (except of course if this is your full-time job and that you can make a living out of it…), two things that I lacked lately for various reasons. I concede this blog looks pretty outdated compared to the many developments that happened over the past 6 months. To name a few: the update of the High Commissioner for Human Rights on the OHCHR investigation on Sri Lanka to the Human Rights Council (HRC); the publication of the fact-finding reports of the Commission of inquiry (CoI) on the Central African Republic (CAR) and of the OHCHR investigation mission to Iraq; the HRC request to dispatch an OHCHR mission to investigate abuses committed by ISIS and other terrorist groups in Libya; the extension of the deadline for the Commission of Inquiry (CoI) on the Gaza Conflict report to the HRC; and the decision by the CoI on Syria to share its confidential lists of names of alleged perpetrators of international crimes with European prosecutors to support accountability, following a debate over its original plan to make the lists public in stark contrast with previous CoIs’ practice.

Now all those developments bear various implications. One may question for example the limited fact-finding mandate given by the HRC to the OHCHR in Iraq and in Libya focusing only on abuses committed by ISIS. I could also have chosen to wait for the next newsworthy issue to look more on top of things! But as you know I created this blog for a different purpose, and in that spirit I’d like to share a few thoughts on a very specific question related to the Report of the CoI on CAR published last December: To what extent can a fact-finding body be flexible when applying its standard of proof to the many different alleged violations it investigates without compromising its credibility? And if so, how can it remain consistent in relying on the same standard of proof?

This may at first seem like a minor question. It usually goes unnoticed as it is more linked to the actual and daily fact-finding work. It is however a fundamental aspect. To my knowledge the Report on CAR is the first of its kinds to make such an explicit reference to the challenge in applying a standard of proof, an issue that lies at the heart of any fact-finding process.

The standard of proof in fact-finding is usually defined as the degree of certainty fact-finders set and at which point they can make factual determinations, in other words the type of threshold they use to consider they are convinced an incident happened a certain way. Various standards of proof exist. The least demanding standard, one commonly used by fact-finders, is called the ‘balance of probabilities’ (in Ramcharan, ‘Evidence’) which consists of comparing information that confirms a fact or a violation with information that questions it. If the former is the most convincing, the fact will be considered ‘established’. The terms ‘reasonable grounds to believe’ or ‘reasonable suspicion’ are also used, such as in the Mapping Report on DRC (p.39), defined as “a reliable body of material consistent with other verified circumstances tending to show that an incident or event did happen”.

Adopting a standard of proof is as much a methodological requirement for fact-finders to carry out their mandate pertaining to the establishment of facts as it is a guarantee to ensure their findings are credible. The dilemma is as follows: Fact-finders are expected to consistently rely on the same standard of proof to make factual determination, apart from the particular situation where they may decide to apply a higher standard of proof, different from the one used to ascertain facts, to make determinations on identifying alleged perpetrators of international crimes. However, as such a standard of proof is spelled out as a general and abstract threshold guiding the fact-work. When applying a given standard of proof, numerous elements may influence one’s ability to implement it in a consistent manner, such as the difficulty to gather certain types of evidence, say when the fact-finders cannot access the country or when investigating specific incidents where evidence is scarce.

Obviously, if the degree of certainty set by the CoI cannot be reached, fact-finders will not be able to make a factual determination and they will have to reflect this in their report. Besides this particular case, the coherent application of a given standard of proof indeed raises significant challenges. Usually CoIs and fact-finding missions merely state the standard of proof they use when describing their methodology. The CoI on CAR however seems to go beyond this when addressing this question (Report, at paras. 16-17, extracts). It noted:

The standard of proof applied by the Commission in its work is that there are “reasonable grounds to believe” that a particular incident occurred or that a given pattern of violations prevailed. The Commission has endeavoured to apply this standard with an appropriate degree of rigor, although the feasibility of different techniques of verification, cross-checking, and corroboration inevitably differs according to the context involved. This approach is fully consistent with that commonly used in international fact-finding inquiries of this sort. (…)
The rigorous application of this standard of proof has meant, for example, that the Commission has not been able to make full use of some of the photographic and video materials to which it has been given access, because it has not been able to authenticate or situate the materials in accordance with the required standard.

The standard of proof being closely linked to the sources of information or evidence used to established facts, the CoI on CAR unsurprisingly focuses on the questions of verification and cross-checking of sources. From the example given on the impossibility to authenticate certain photographic and video materials it appears the Commission applied the standard of proof not just to establish facts but also at the stage of the assessment of which sources of information to consider. This would also mean that the way it applied this standard did not vary from one context to another. However, as a matter of explaining the methodology, the wording used (‘feasibility’, ‘context’) may suggest that all efforts were made to apply this standard with rigor but that it was not always possible to do so.

While I don’t pretend to stretch too far the interpretation of these two paragraphs, this   hints at the question of whether fact-finders are able to apply a given standard of proof systematically the same way. By definition the body of information or evidence available and deemed credible and reliable will vary from one incident to another. Whatever information fact-finders use, be it through testimonies, physical evidence or documentary evidence, it is a methodological imperative for them to assess the extent to which those sources can be used to make factual determinations. For example the International Commission of Inquiry on Libya noted that “the quality of the evidence and information obtained by the Commission varied in its accuracy and reliability” (para. 116).

Beyond the question of availability of sources, when it comes to the legal qualification of facts, fact-finding on alleged violations of some specific international norms may complicate further the ability to apply a standard of proof in a consistent manner. This is particularly the case in the field of international humanitarian law on the conduct of hostilities. Due to the way those norms are drafted, they require taking into account the perspective of the attacker, in order to establish whether a violation occurred. This of course raises difficulties as to the ability of fact-finders to have access to information about this component. In addition, the wording of those norms might also prove to be challenging. For example regarding the obligations of precaution in attacks, the rules refer to feasible precautions, or what was practically possible at the time of the attack, in order to assess whether precautionary measures were taken, making those obligations relative in nature. In that case, even if the same standard of proof is applied throughout the work of a CoI, it may be difficult to reach a similar degree of certainty when investigating those elements on precaution compared to reaching factual and legal conclusions on incidents where governmental soldiers deliberately killed civilians. This may be a subtle difference but fact-finders might be satisfied with less evidence although they apply the same standard.

Ultimately a standard of proof only provides a framework to ensure overall consistency. As noted by Stephen Wilkinson, an expert who wrote some of the most comprehensive studies on the standard of proof in fact-finding, “having a standard of proof on its own will not provide clarity for all findings, it simply sets out a broad understanding of the threshold required to asset findings of fact and law” (p. 12).

Leave a Reply