International fact-finding reports on issues like war crimes suffer from too much legal jargon and a counterproductive culture of blame, a Stanford legal scholar says.
Rather than let “legal discourse” dominate such reports, international fact-finding agencies should use clearer language in such documents, allowing these institutions to tell a more complex, multifaceted and socially accessible story, wrote Shiri Krebs of Stanford Law School in a new working paper.
In recent years, Krebs points out, international fact-finding has become a popular response to armed conflicts and political violence around the world. For her research, she conducted two survey experiments in 2013 and 2014 of nationally representative samples of 1,000 to 2,000 Americans while also compiling and analyzing a dataset of U.N. fact-finding missions.
Krebs said, “Legal discourse is ineffective in resolving factual disputes, disseminating controversial information and creating a shared narrative of ‘what happened,’ as well as in mobilizing public opinion and influencing attitudes on sanctioning in-group offenders and on reparations for out-group victims.”
Krebs is a Law and International Security Fellow at the Stanford Center for International Security and Cooperation, as well as the Christiana Shi Stanford Interdisciplinary Graduate Fellow in International Studies at Stanford Law School. Her study is also supported by the Stanford Laboratory for the Study of American Values.
Krebs said her research shows that the writing techniques in legal discourse – “binary legal judgment, ‘hot’ legal terminology and legal framing” – harms the perceived credibility and persuasive value of fact-finding reports.
Framing refers to the process by which people develop a particular conceptualization of an issue or reorient their thinking about an issue.
The most surprising findings of the study for Krebs were witnessing the intense polarizing effect of legal judgments on people’s beliefs about military actions, depending on their political and ideological views, as well as realizing just how much “legal framing” doesn’t matter in shaping attitudes on accountability.
Instead, a “moral framing” of the incident would have been a better way to get the public involved in holding those responsible for alleged war crimes accountable, Krebs said.
“Using a moral frame is more effective than a legal frame in influencing attitudes on accountability and mobilizing public support to prosecute U.S. war criminals and to compensate Afghan victims,” she said in an interview.
One of the incidents Krebs studied involved the U.S. gunship attack on a Doctors Without Borders hospital in Kunduz, Afghanistan, on Oct. 3, 2015, where 42 people, mostly patients and hospital staff members, were killed.
She said that in the days and months following the attack, several investigations were carried out by the U.S. military, NATO, the U.N. Assistance Mission in Afghanistan and Doctors Without Borders.
“However, the multiple fact-finding efforts failed to resolve the controversies concerning what happened. The decision to describe the events using a legal language – such as ‘war crimes’ and ‘criminal responsibility’ – shifted the focus of attention from the impact of the attack on medical services in conflict zones, the suffering of the victims of the attack or the organizational structures that enabled the attack to occur, to intense legal debate between legal scholars and practitioners concerning the applicable law,” Krebs said.
Krebs’ research built on studies from three disciplines – law, psychology and political science. She is concerned about what she describes as “an increasing ‘legalization of truth’ phenomenon,” defined as when agencies adopt legal terminology and jargon to “construct and interpret facts outside the courthouse.” It is not necessary and sometimes not productive to do so, she believes.
Such an approach lacks the emotional appeal and ability to focus public attention on problems that moral expressions or other types of social truth-telling entail, she said. Using a legal frame only conveys to the audience the legal context of what happened – not the human element that people can relate to and rally behind.
While some may view the law as objective and uniform, Krebs said, many people have negative attitudes toward lawyers and perceive their language to be overly technical and manipulative. Simply, most people become less engaged in a public debate once it is framed in legal wording, partly because they don’t understand the legal nuances, and partly because they think lawyers can manipulate the truth to fit their clients’ needs.
In contrast, she said, people tend to better understand and engage in conversations about morality – “it allows for a more complex variation and a more versatile spectrum between right and wrong, true and false.”
International agencies can make the fact-finding report process more efficient by considering other types of discourse, Krebs said.
“A broader, non-legalistic interpretation of truth, such as a narrative, social or restorative truth, may be better suited to contribute to a collective narrative of contested events, create a ‘shared history’ and disseminate otherwise threatening facts,” she said.
Krebs points out that scientific and medical literature concludes that the threat of judicial involvement is enough to prevent people from coming forward with information about an incident that they were involved in.
“Judicial involvement can, therefore, engender a climate of fear and silence, in which it can be difficult, if not impossible, to get access to information that may be critical to finding out what happened and to prevent similar errors in the future,” she said.
And so, in situations where people are reluctant to report and disclose information, agencies should promote “blame-free alternatives to legal fact-finding,” which could, potentially, motivate individuals to share information and experiences openly, Krebs said.
She said the attack on the Kunduz hospital is only one recent example of the impact of legalization of truth on public debates; “legal discourse influences our public domain and our conversations concerning many other controversial social issues.”