Law and truth are intimately connected concepts since the application of legal rules always relies on facts. Nevertheless, the determination of the facts regularly poses significant problems. This project will explore how law and legal practice deal with this fundamental problem.
Assessing the probative value of evidence remains one of the most challenging tasks for courts in their decision-making. Domestic legal orders have produced various, sometimes culturally contingent ways of doing so. Legislative and executive practice also need to rely on facts to make lawful decisions and face many of the same issues as courts, while often having less means and time to investigate.
Even for the institutions of modern States, the process of determining what is or was is arduous and prone to mistakes. On the international level, establishing the facts can be an even more difficult endeavor due to structural differences to domestic law. Investigations can be hard to impossible to conduct for international institutions which can only act upon the consent of States concerned. Establishing the true course of events in regions of crisis or even armed conflict can be complicated by the destruction or unattainability of evidence. At times, international institutions are even expected to assess historical events still sensitive to societies today and in a way that transcends the individual case at hand.
This project will investigate whether international law has developed characteristic institutions for compensating difficulties in establishing the truth, such as self-reporting mechanisms, commissions of inquiry, special rapporteurs and positive obligations to investigate directed at the actors involved in a dispute. Moreover, the structure of international rules will be analyzed for properties that seek to facilitate their application to the facts.
In short, this project will analyze how the law establishes the factual premises for its application, and it will examine which balance the law strikes between finding the truth and respecting conflicting interests. Can the institutions and norms investigated really serve to uncover truth, or are they rather meant and sometimes abused to generate a version of events acceptable to relevant actors and powers? Is truth, after all, merely a point of view inevitably subject to human error?