The Dark Side of Legal Truth

Abstract

Why have international fact-finding missions – including the Goldstone mission on the Gaza conflict – failed to settle disputes over ‘what happened’? Is a better way to design fact-finding mechanisms to ascertain facts and to promote a shared understanding of controversial events? This paper argues that the institutional choice of current international fact-finding mechanisms (the Goldstone Mission included) to focus on legal truth and to produce legalized fact-finding reports triggers social processes of rejection of information and production of counter-facts. The abstract nature of legal norms creates a psychological distance between the facts and their audience; and the adversarial nature of legal norms motivates conflicting societies to reject information that deviates from the national narrative. As a result, the adoption of legal standards may unintentionally intensify distortion (rather than assertion) of facts. In recent years, a scholarly literature describing and analyzing international fact-finding have been steadily developing. Nonetheless, the vast majority of these studies is either essentially descriptive or largely uncritical. The ‘legalization of truth’ in international fact-finding efforts has not yet been analyzed or questioned, and alternatives were not seriously considered. Instead, UN organs, as well as many other international organizations, have routinely designed fact-finding missions to expose the legal truth, based on legal norms and standards. Lacking compulsory jurisdiction, the fundamental goal of these fact-finding missions has been to produce credible facts and to persuade relevant audiences to accept their findings and adopt their recommendations. The basic assumptions underlying this strategy are that fact-finding reports inform the relevant publics and motivate domestic sanctioning of in-group offenders.

This paper challenges both assumptions. It complements existing qualitative and observational studies by leveraging the use of experiments embedded in comparative national surveys fielded in the U.S. and Israel. Using survey-experiments, this research project provides systematic evidence of the consequences of international fact-finding reports on peoples’ attitudes and beliefs. It directly measures individuals’ reactions to both positive and negative information, and demonstrates how motivated cognition and other socio-psychological processes influence people’s reactions to new information about war crimes committed by their fellow nationals.

Keywords: fact-finding, truth, social biases, Goldstone Mission, Gaza, Transitional justice, war crimes, attitudes, public opinion

JEL Classification: K30, K33, K40, K42, Z18