Introduction to Fact-Finding

The term ‘fact-finding’ and ‘inquiry’ refer to the methods of ascertaining and determining facts used in international relations for various purposes.[1] These methods include processing several types of facts or alleged facts, by identifying, obtaining, locating, analysing, verifying, summarising, corroborating, synthesise, organising, presenting, structuring, and disseminating the facts.[2]

Traditionally, there are three main objectives for establishing facts: to facilitate execution of international agreements; to initiate a peaceful settlement of disputes between two or more states; and to supply the information required for decision making under Article 34 of the United Nations Charter.[3] The function of fact-finding for execution of international agreements, serves to secure the performance of international obligations. The UN Specialized Agencies as well as other global or regional bodies engage in this type of fact-finding.[4] The second purpose being a narrow one, thus identifying fact-finding as a specific procedure in cases where differences of opinion and disputes have arisen on factual matters between parties. The 1899 Hague Conference laid the foundations for such provisions, and 1907 Hague Conference further developed it.[5] Finally, there is fact-finding for the purposes of Article 34 of the UN Charter[6] under which Security Council can investigate any situation or dispute that may endanger international peace and security. However, in practice, the Security Council relies heavily on its implied powers for investigating rather than explicitly invoking this provision.[7]

This article is divided into the following parts:

  • Part I addresses the importance of quality control in fact finding
  • Part II addresses the different parameters for quality control (vis-à-vis scope of mandate of these fact-finding commissions; laws and evidentiary norms that are applicable;
  • Part III addresses IFI report on the incident affecting OSCE’s Special Monitoring Mission to Ukraine (SMM) patrol on 23 April 2017.
  • Part IV is concluding remarks.

PART I: Quality Control In Fact-Finding

From the substantive point of view, one of the most decisive challenges in fact-finding is the formulation of the mandate. It is essential to pose realistic objectives that fact-finding missions are able to achieve. The current trend is over-expansion of the scope of the mission.[8] Quite often, fact-finding drifts away from the fact-work towards defining the law.[9] In other cases, one observes an ambitious attempt to understand root causes, circumstances, factors, context and motives of countrywide situations of repression or violence in a comprehensive manner.[10] The fact-finding commissions with widely defined, open-ended objectives may struggle to meet the expectations, especially when funding is inadequate or the available time is limited.[11] Consequently, there is a high demand for the formulation of the discreet specific functions that have the potential of being met in practice.[12]

Another substantive research issue pertaining to international fact-finding concerns the intertwining of the factual and legal analysis. Some reports prepared by the fact-finding commissions go beyond factual conclusions and make legal pronouncements. This peculiarity gives fact-finding missions a normative touch. The task of ascertaining the facts is to be performed in an impartial manner.[13] This does not imply that fact-finding is a neutral activity.[14] As one of the legal commentators have stated, the fact finders ‘cannot afford an attitude of neutrality’.[15] The solution may be to work on devising procedures separating to the largest extent possible the questions of fact from the law, while respecting the boundaries of the mission as defined by the mandate.

Additionally, there are a number of procedural issues ingrained in international fact-finding that influence the outcome of the mission. For example, it is advisable to look into improving logistical support for the fact-finding missions because practical problems such as access to the country under examination, availability of information, or security concerns for the mission members may be material impediments to the fact-finding processes. It would be beneficial to further explore the ways of securing state consent to allow access to classified military information, which is essential in determining the questions of international humanitarian law.[16] Fact-finding could benefit from exploring alternative mechanisms of obtaining information in the instances when the physical access of mission members to the territory in question is limited by the state under scrutiny.

It is here where the purpose of quality control comes in, where commissions choose the most suitable substantive (wordings of mandate, law applicable) and procedural rules (evidentiary norms or rules for marshalling of facts applicable) to produce a coherent report marshalling facts grounded in the relevant substantive or procedural law to enable it being relied upon by an international organization for further course of action.

PART II: Parameters for Quality Control in Fact-Finding

This part addresses quality control vis-à-vis the following substantive and procedural parameters:

  1. Mandate of the fact-finding commission;
  2. Law and policy;
  3. Evidentiary norms

1. Mandate of Fact-Finding Commissions

Fact-finding missions are generally, established to inquire into situations that are politically fraught and in which the facts are hotly disputed. If such inquiries are to have any value, there must be general confidence by the contesting sides that the inquiry will be conducted impartially and independently. There must be a perception that those who are entrusted with the mission will not be biased in favour of or against one of the contesting parties.[17] Mandate can be implied or be expressly provided. For example, treaty bodies (Special Procedures serving the intergovernmental Human Rights Council, namely Special Rapporteurs and Working Groups) have an implied mandate and that has to be construed in light of the provisions of the treaty under which they have been established[18]. The UN guided fact-finding missions are quite essentially governed by the provisions of the UN Charter (for example scope of powers of the Security council to investigate any dispute under Article 34 of the UN Charter from the perspective of maintenance of international peace and security).

The wording of the mandate is an essential feature to maintain quality control, in fact-finding missions. For sake of illustration, we shall rely upon the fact-finding mission referred by the UN High Commissioner of Human Rights to Justice Mr. R.J. Goldstone.[19] In the original resolution, the terms of reference were worded to cover only war crimes allegedly committed by Israel. There was no word about war crimes allegedly committed by Hamas in sending many hundreds of unguided rockets into civilian areas,[20] thus amounting to a one-sided mandate. This was later amended to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after,[21] therefore amounting to a more evenly placed mandate.

According to Justice Mr. R.J. Goldstone some of the following principles are key in terms of deciding the mandate other relevant principles:[22]

  • There is the necessity of actual and perceived independence. The most effective way to obtain that is by consulting the parties on the choice of mission members.
  • The terms of reference must be clear and unbiased and in no way pre-judge any of the issues.
  • The manner in which a fact-finding report is written is also important. Its language should not be pejorative and its conclusions should not go beyond the established facts.
  • To the extent possible, the mission should be performed as publicly as possible while balancing the security of the members of the mission, witnesses and the integrity of its work. It should be open to scrutiny by the media and, through it, by the people who are concerned with the findings.
  • The methodology adopted by the mission should be fully set out in the report.

2. Questions of Law and Policies

While human rights treaty bodies are essentially pertaining to human rights violations attributable to states, the whole purpose of humanitarian law is to ensure, prevention of violation of the principles during cases of an armed conflict, while affixing responsibility to the actors for any violations. In cases of conflict, two regimes apply International Human Rights Law (IHRL) and the regime of International Humanitarian Law (IHL), while IHRL is applicable even generally , IHL applies only during armed conflicts (whether International Armed Conflict (IAC) or Non International Armed Conflict (NIAC)). IHL qualifies as lex specialis derogat legi generali (Special law repeals general laws) when compared to the applicability of the IHRL regime. Therefore this nature and scope of the two regimes, further shapes up the functioning of fact-finding commissions and plays a critical role maintaining quality control.

Treaty bodies essentially engage in fact-finding for human rights violations, or missions set up under the auspices of the UN (Resolutions of UN Committees). The International Humanitarian Fact-Finding Commission (IHFFC) on the other hand is competent to conduct an investigation into instances of fact-finding pertaining to humanitarian law violations.

In order to secure the guarantees afforded to the victims of armed conflicts, Article 90 of the First Additional Protocol to the Geneva Conventions of 1949 (AP I) provides for the establishment of an International Fact-Finding Commission. The IHFFC was subsequently established in 1991. It is a permanent body of 15 independent experts, acting in their personal capacity, elected by the States having made a declaration of recognition under Article 90 of AP I.[23] The Commission’s essential purpose is to contribute to implement and ensure respect for IHL in armed conflict situations.[24] For a more detailed overview of the IHFFC, see the contribution for Larisa Christina Triantafyllidi here.

The nature of the law determines the course of actions, to be taken, grave breaches of IHL are essentially, prosecutable as seen in the cases of the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda in addition to the grave international crimes. The choice of substantive and procedural law applicable ensures quality control in fact-finding missions. The quality of evidence used is also inter-related to the nature of the law, in cases of ascertaining fact-finding missions. Therefore, some of the evidentiary principles are discussed in the next sub-part.

3. Quality Control Vis-À-Vis Evidentiary Tests:

As fact-finding pertains to assimilation and marshalling of evidence with regards to the occurrence of a certain fact, certain evidentiary norms are to be followed for the report to be viable and assisting for the purpose it was commissioned.

All fact-finding methods are based on the three essential pillars that determine the quality of output of the fact-finding process. These three factors are ‘(i) how strong the connection is between the evidence and the conclusion (supportiveness); (ii) how solid each of the elements of the evidence is, independent of the conclusion (independent security), and (iii) how much of the relevant evidence the evidence includes (comprehensiveness)’. [25] These three factors, determine the evidentiary value which supports the conclusions obtained.[26] As such as evidence obtained is relevant, to the enquiry and supports the proposition or the conclusion so derived are the two most crucial factors that have to be kept in mind while in an inquiry or inquest for ascertaining and undertaking fact-finding, thereby ensuring quality control and coherency in fact finding.

It goes without saying that fact-finders should only make factual claims, which they themselves believe to be true.[27] In addition, it is expected that fact-finders are objective and rational. This means that fact-finders need to provide valid reasons for affirming the factual propositions advanced. Crucially, fact-finders should be able to explain those reasons to facilitate independent opinion about their quality, thus being able to ‘justify’ their beliefs. It should be noted, however, that even if a factual proposition is justified, this does not necessarily mean it is true. Indeed, a proposition can be justified but not true, just like it can be true but not justified. Nevertheless, having justification for one’s beliefs is essential from an epistemic point of view, because believing without justification is an epistemic fault, whereas have a justified belief in an untruth is an epistemic mistake.[28]

For most practical purposes, the question to be pondered upon is not so much whether the factual findings are true, but whether they are justified. Whether a belief is justified depends on a number of factors, the most important of which is the totality of evidence the fact-finders have at their disposal. By gathering evidence one can differentiate and distinguish and defeat propositions that lack evidence, therefore as long as one does not have all the evidence, one’s beliefs remain defeasible.[29] When one is confronted with a mass of evidence, the task of the fact-finder is to analyse how each potential explanation accounts for all the elements of information contained in the evidence. This is achieved by dividing the elements into two groups: those elements, which are accepted, because they cohere with each other, and those that are rejected because they are incoherent with the accepted elements.[30] It is based on this general principle of facts that evidence norms are relied upon. One of the evidentiary tests that can be applied is the best explanation test.[31] In this test, a particular fact is taken, it is given an explanation, similar coherent pieces of explanation are taken to build up an analogy, the evidential material so collected is prioritised, contradicted to see rule out any fallacies and then accepted.

Part II: IFI Report on the Incident Affecting an OSCE Special Monitoring Mission to Ukraine (SMM) Patrol on 23 April 2017

During a routine patrol of the OSCE Special Monitoring Mission (SMM) in the non-government controlled area of Ukraine near Pryshyb on 23 April 2017, an armoured vehicle of the SMM with three persons on board was severely damaged as a result of an explosion. Consequently, a paramedic was killed, and the two other patrol members were injured[32].

The Mandate:

On 19 May 2017, the IHFFC was asked by the OSCE to lead an independent forensic investigation (IFI) in relation to the incident of 23 April 2017.[33]

The mandate came into being by virtue of a signed a memorandum of understanding between the two organizations, followed by a distinct agreement relating to the incident. Based on the terms of reference agreed therein, ‘the purpose of the independent forensic investigation is to establish the facts of the incident by conducting a post-blast scene forensic and technical assessment against the background of international humanitarian law’.[34]

Law Applicable:

The investigation was guided by and limited to the applicable rules of international humanitarian law, and its possible violations. Criminal responsibility and accountability for the explosion were excluded from the scope of the mission, thus preventing it from spilling into the legal sphere (a prerogative of the criminal process adjudicated by the courts).[35]

Setting up of the Commission:

Ambassador Alfredo Labbé (Chile), Vice-President of the IHFFC, led the investigation team. The other members of the team were proposed by the IHFFC and selected by the team leader in consultation with the OSCE Secretary General. The team conducted its investigation confidentially and reported to the OSCE Secretary General only.[36]

Methodology used:[37]

The IFI reviewed documents, interviewed witnesses, examined the damaged vehicle, the site near Pryshyb where the incident occurred and material collected at the site. It also conducted a forensic medical analysis of injuries. Due to the extensive period of time that elapsed between the incident and the inspection of the site, evidence may have been lost or deteriorated.

Findings and Concluding Remarks:[38]

The IFI established that the munition most likely to have caused the incident was a Russian-manufactured TM-62M anti-tank mine. It is highly probable that the mine had been either laid one or two days before the incident or it had been laid several days before, with multiple ‘near misses’ from passing vehicles. It is considered unlikely that the mines could have been in place for months or years, being subjected to hundreds of passes from heavy vehicles, yet failed to explode.

SMM was the unintended target of the attack as the path was not frequently used by the SMM and the planning of the patrol would not give sufficient time to lay the mine.

The road was frequently used by civilian traffic; therefore any recent placing of anti-vehicle mines constitutes a violation of the international humanitarian law because of the predictable indiscriminate effect.

In light of the evidence provided and the constraints of the passage of time from the date of the incident and investigation, the mission could have used the best explanation test and also the three pillars or cannons of evidence as stated above, to come at the conclusion of the mine being of Russian origin. By analysing the circumstantial evidence of the time period and the frequency of vehicles and the nature of the road being one used for civilian purpose, the IFI have deduced that the possibility of the mine being laid months or years in advance is unlikely therefore deducing that it was laid in a more recent time to the date of the incident. Considering the nature of the path, it was further deduced and explained that the mine was laid more to attack civilian vehicles than the OSCE mission, therefore, amounting to the violation of the international humanitarian law.

Part IV: Concluding Remarks:

Based upon the summary report, it can be seen prima facie that the rules stated above pertaining to quality control in fact finding are visible in the investigation conducted and the consequent report prepared and submitted. The mandate has been specifically agreed upon,[39] to investigate the incident and possible legal violations vis-à-vis the principles of international humanitarian law.

By excluding the criminal responsibility aspect, the mission was ensured to be extremely specific, therefore streamlining the role and the approach of the mission and limiting it to the scope of fact-finding. By mutual consultations, the team was selected and a command structure was decided upon (reporting directly to the Secretary-General) further facilitated in the efficiency of the mission.

The efficiency of the report vis-à-vis quality control standards stated above can be ascertained. It has prescribed to the demarcations of the mandate of the mission and the process to be applied. By limiting the scope and purview of the investigation, the Organisations ensured, the mandate would not spill over into legal sphere without the base of the factual sphere thus facilitating their analysis in light of the parameters of mandate, law and evidentiary norms.

[1] KJ Partsch, Fact-Finding and Inquiry, in Rudolf Bernhardt (Ed.), Encyclopedia of Public International Law, vol. 1, at 61 (1981).

[2] M. Aksenova and M. Bergsmo, Non-Criminal Justice Fact-Work in the Age of Accountability, FICHL Publication Series No. 19, at 1 (2013).

[3] See Partsch, Supra n-1, at 61.

[4] See M. Aksenova and M. Bergsmo , Supra n-2, at 3.

[5] M. Shaw, International Law, 1019–1020 (2008).

[6] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

[7] Simma et al. (ed.), The Charter of the United Nations: A Commentary, at 516 (2002).

[8] UN Human Rights Council, “Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence”, 28 August 2013, A/HRC/24/42, § 21.

[9] See M. Aksenova and M. Bergsmo, Supra n-2 at 18; Dapo Akande and Hannah Tonkin, “International Commissions of Inquiry: A New Form of Adjudication?”, in EJIL: Talk!, available at http://www.ejiltalk.org/interna tionalcommissions-of-inquiry-a-new-form-of-adjudication/, last accessed on 25 January 2017.

[10] See Report of the Special Rapporteur, Supra n-19, §94.

[11] Ibid., § 97.

[12] Ibid., § 102.

[13] See M. Aksenova and M. Bergsmo, Supra n-2 at 19; Bertrand G. Ramcharan, International Law and Fact-Finding in the Field of Human Rights, Martinus Nijhoff Publishers, 1982, p. 7.

[14] Ibid.

[15] Theo van Boven, “Fact-Finding in the Field of Human Rights”, in Israel Yearbook on Human Rights, 1973, vol. 3, no. 93, p. 106.

[16] Théo Boutruche, “Credible Fact-Finding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice”, in Journal of Conflict and Security Law, 2011, vol. 16, no. 1, p. 121.

[17] R.J. Goldstone, Quality Control in International Fact-Finding Outside Criminal Justice for Core International Crimes, FICHL Publication Series No. 19, at 35 (2013).

[18] For eg. Treaty bodies under Convention on the Prevention and Punishment of the Crime of Genocide (1949) and the Convention Relating to the Status of Refugees (1951), did not establish any courts, other independent monitoring bodies, or even independent monitoring procedures.

[19] See R.J. Goldstone Supra n-17 at 46.

[20] See R.J. Goldstone Supra n-17 at 46.

[21] Ibid.

[22] Ibid, at 51-52.

[23] International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3.

[24] IHFFC, http://www.ihffc.org/index.asp?page=home, last accessed on 26 January 2017.

[25] Susan Haack, “Warrant, Causation, and the Atomism of Evidence Law”, in Episteme, vol. 5(3), 2008.

[26] S.D. Smet, Justified belief in the Unbelievable, FICHL Publication Series No. 19, at 98 (2013).

[27] Ibid, at 35 (2013).

[28] Hock Lai Ho, A Philosophy of Evidence Law: Justice in the Search for Truth, 2008, Oxford University Press.

[29] See S.D. Smet. Supra n-26 at 98.

[30] Ibid.

[31] Ibid.

[32] OSCE. Executive Summary of the Report of the Independent Forensic Investigation in relation to the Incident affecting an OSCE Special Monitoring Mission to Ukraine (SMM) Patrol on 23 April 2017*, http://www.osce.org/home/338361, last accessed on 28th January 2018.

[33] IHFFC, http://www.ihffc.org/index.asp?page=news, last accessed on 26 January 2017.

[34] Ibid.

[35] Ibid.

[36] See IHFFC, at n-33.

[37] See OSCE Report, at n-32.

[38] Ibid.

[39] Refer IHFFC, at n-33.

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