Legal truth can hamper international fact-finding efforts: Deakin law expert

Dr Shiri Krebs, a Senior Lecturer with the Deakin Law School, has been researching the impact legal language has on the way people respond to international fact-finding reports of contested events such as war crimes.

She has been specifically concerned about the increasing legalisation of truth, when agencies adopt legal terminology and jargon to construct and interpret facts outside the courtroom.

“This practice is not necessary and sometimes triggers backlash and resentment within the blamed communities,” Dr Krebs explained.

“Legal fact-finding has become the dominant response to investigate facts relating to armed conflicts and political violence around the world with investigating bodies trapped in the misconception that a legal approach is the only method to resolve wartime controversies and mobilise action.

“My research suggests it may be the case that legal fact-finding is ineffective in realising both.

“In our ‘post truth’ era, where ‘alternative facts’ are often produced to counter unwelcomed facts and narratives, it is more important than ever to seek new and better ways to produce and introduce information, and prompt reforms based on the lessons learned.”

A study Dr Krebs conducted while at Stanford University and published in the current issue of the Chicago Journal of International Law has shown how the use of legal language can skew the way people respond to the facts of an incident.

The research focussed on the 2015 US gunship attack on a Doctors Without Borders hospital in Kunduz, Afghanistan, that killed 42 people, mostly patients and hospital staff.

Dr Krebs said that in the aftermath of the attack multiple fact-finding efforts failed to resolve the controversies concerning what happened and bring those responsible to justice.

“The attack on the Kunduz hospital is only one example of the impact of the legalisation of truth on public debates and how legal discourse influences our public domain and our conversations concerning many other controversial social issues such as police violence, sexual harassment, racism, and immigration,” she said.

“The decision to describe the events using legal language – such as ‘war crimes’ and ‘criminal responsibility’- shifted the focus from the impact of the attack on medical services in conflict zones, the suffering of the victims of the attack or the organisational structures that enabled the attack to occur, to intense legal debate between legal scholars and practitioners concerning the applicable law.”

The attack on the Kunduz hospital and the controversy that followed it exemplify a broader phenomenon, Dr Krebs said.

“Legal fact-finding reports set to resolve factual disputes often trigger more controversies, and are poorly equipped to mobilize domestic sanctioning and condemnation of war criminals by their societies,” she said.

“To directly measure the impact of legal discourse on attitudes and beliefs, my study involved survey-experiments with representative samples of 3,000 US nationals.

“In addition to testing willingness to believe the facts, the experiments also tested the impact of fact-finding reports on attitudes about various accountability measures.

“The experimental manipulation when presenting the participants with the facts of the event was very subtle: instead of describing the relevant norm as ‘legal’ standard it was described as a ‘moral’ standard. The standard itself, as well as the judgment (and everything else), were identical.

“I found that participants were more willing to support compensating Afghan victims and sanctioning the US soldiers responsible for the attack when their misdeeds were described as a violation of moral standards than when they were described as a violation of international law.

“A possible explanation for this finding lies in the public perception of legal findings as adversarial, technical, and too complicated for non-lawyers to understand. In contrast, a conversation about morality is inclusive, does not require sophisticated legal knowledge, and is more intuitive.

“By revealing the impact of legalisation of truth on people’s beliefs and attitudes, this research creates a new framework to understand the failures and successes of legal fact-finding in particular and the practice and output of legal institutions more broadly.”