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Blame-free approach to war crimes

Improving information sharing in sensitive fact-finding cases and encourage institutional change.

Deakin Law School’s Dr Shiri Krebs experiments have shown people were more likely to dismiss fact-finding investigations and accusations against their own country’s military if the results were presented using incriminating legal language.

“Legal blame triggers threat and denial that ultimately may prevent people from telling what they know and from taking responsibility for their actions,” Dr Krebs said.

“If you’re considered a war criminal there is a huge price to pay and people can’t see themselves – or their community members – as such.”

Dr Krebs last year conducted a survey of 2000 Jewish-Israeli nationals, measuring their willingness to believe the facts of a report into the Israeli-Palestinian conflict that incriminated IDF soldiers in the deaths of 14 unarmed Palestinian civilians.

“The experiments showed war crime language triggered very high levels of anger towards the report, dramatically reducing willingness to believe the facts and the perception of the report’s fairness,” she said.

Dr Krebs said respondents were more likely to acknowledge the incriminating evidence if it was presented as a “violation” rather than by its legal definition as a war crime.

“Different framing of the facts can mitigate or intensify controversy about those facts – this is a situation that we need to acknowledge and respond to,” she said.

“At a time when ‘fake news’ is the catchphrase of the moment and the production of facts triggers the production of alternative facts, we have to start thinking more seriously about how to conduct international fact-finding in a way that results in less denial and less of a negative response.”

To that end, Dr Krebs has suggested a shift away from the legalisation of truth in international fact-finding.

“Fact-finding missions currently don’t look at the facts as something separate from legal interpretations, but the legal truth has very distinct features, only allowing for a very limited amount of facts to be relevant to the story,” she said.

“People say ‘the facts speak for themselves’ but this isn’t the case – the facts don’t speak for themselves, the law is speaking for them, and the choice of using lawyers to collect and produce facts is a choice about the story we are going to tell.”

Dr Krebs said fact-finding missions could learn from the fields of aviation investigation or medical negligence, which can encourage systemic change rather than assigning specific blame to individual actors.

“Many wartime attacks that harm civilians are not the result of malicious soldiers’ behaviour or ‘rotten apples’ but rather occur, inevitably, as a result of military mindset, flawed processes, and vague orders,” she said.

“I promote a blame-free approach to war crimes, at least with regard to some cases in which the main danger to civilians’ lives stems from military culture and processes that engender an environment of harm.

“We have some ways we could at least try to mitigate denial so that an international fact-finding mission won’t end up intensifying the very conflict it was designed to resolve.

“If we want to better protect civilians in conflict zones we need to look at it not from the perspective of ‘who’s the soldier that we need to put behind bars’, but what can be done at an institutional level to ensure it doesn’t happen again.”

Dr Krebs recently presented her findings at the 2018 European Society of International Law Research Forum in Jerusalem.

She will also be presenting the research later this month at the ANU College of Law’s 19 April College Seminar and the 27 April Australian and New Zealand Society of International Law (ANZIL) 2018 International Peace and Security Interest Group Workshop in Brisbane.

Originally published on Deakin Media.

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