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Gathering evidence is of utmost importance in any legal proceeding. However, sometimes, one of the parties may hide specific evidence, which complicates the adjudicators’ reaching of a fair conclusion. For such cases, judges or arbitrators can use several tools, one of which is adverse inference. An adverse inference is a negative conclusion that may be drawn from a party’s failure to provide some evidence without a valid excuse for non-production. By drawing it, adjudicators assume this evidence would harm the party’s interests. At the same time, adverse inference is quite a radical tool because it may strongly impact the final decision. Because of this, adjudicators are sometimes cautious about using it. This paper analyzes the notion of adverse inference in the context of the dispute resolution mechanism available in the WTO. In particular, three cases were summarized in which the Appellate Body made interesting findings regarding the application of adverse inference. As a result of the work, conclusions from these cases are made that can be used by lawyers in future WTO disputes, as well as in other international and national dispute resolution fora.

Focusing on evidentiary approaches, this article examines the burdens and standards of proof applied at United Nations quasi-judicial international human rights bodies. These bodies have dual-faceted mandates, combining legal and human rights traditions and imperatives. However, they diverge in their approach to evidence. This article argues that the prima facie approach developed over the Working Group on Arbitrary Detention's 30 years of jurisprudence provides an appropriately flexible and conceptually coherent means of accommodating combined human rights and the judicial mandates. Nonetheless, this approach requires lexiconic and taxonomical tightening, and clarification of its standard of proof. Comparing the approaches taken by other quasi-judicial bodies, this article builds the impetus towards inter-institutional consistency. It reviews proposals such as wholesale reversal of the burden of proof onto Governments. It highlights the drawbacks of that unilateral type of burden and the risks that it would introduce further uncertainty for parties to proceedings, may cause onerous difficulties for claimants, and would potentially flood the human rights institutions with unsubstantiated claims. [ABSTRACT FROM AUTHOR]

Being wrongfully convicted of a crime is arguably one of the most dreadful examples of injustice in any criminal justice system. This phenomenon has been recorded and studied in Western, predominantly adversarial, jurisdictions such as the United States of America, England-Wales, Canada, and Australia since the late twentieth century. Factors that have been found to contribute to wrongful convictions include eyewitness misidentification, faulty forensic evidence, prosecutorial misconduct, inadequate defence, and many more. While adversarial safeguards such as cross-examination and acquired expertise are thought to diminish the chances of wrongful convictions by revealing unreliable evidence, an increasing number of researchers are concerned that these safeguards have little effect on accurate fact-finding in criminal trials. In South Africa, where individual reports of wrongful convictions in the predominantly adversarial criminal justice system have been recorded in the media, no systems exist to track or investigate the injustice of false convictions. The objective of Part 1 of this article is to review the existing literature on eyewitness misidentification evidence as cause of wrongful convictions as well as those adversarial safeguards upon which criminal justice systems rely to identify errors in fact-finding. Parallels are drawn to the adversarial system as it functions in South Africa, and the possibility of misidentification as root and legal cause of wrongful convictions locally is considered. [ABSTRACT FROM AUTHOR]

International organizations (IOs) dispatch fact-finding missions to establish epistemic authority by objectively and impartially assessing contested facts. Despite this technocratic promise, they are often controversial and sometimes even fuel international disputes that challenge the epistemic authority of the dispatching organizations. Although the twenty-first century has witnessed a proliferation of United Nations (UN) commissions of inquiry, they have received surprisingly little attention in international relations (IR) scholarship. How can we explain this trend and the successes and failures of fact-finding missions, which sometimes even backfire on the IO authority? Drawing on IR theories of delegation, epistemic authority, and IO field operations as well as public international law scholarship on commissions of inquiry, this article develops an analytical framework for studying the delegation, implementation, and dissemination of fact-finding missions. It theorizes how and under what conditions international fact-finding missions close or widen credibility gaps and thus help to establish, maintain, or weaken the epistemic authority of IOs. The article illustrates this framework with a case study of the Ad Hoc Working Group on the Human Rights Situation in Chile, sent by the UN Commission on Human Rights in 1974 to investigate allegations of human rights violations and torture. The conclusion outlines a comparative research agenda on international fact-finding missions for IR that contributes to the study of knowledge production in IOs and the enforcement of international norms. [ABSTRACT FROM AUTHOR]

It is often believed that the common law adversarial process performs efficiently to ensure the truth comes out and that justice is served. However, this was not the case in R v Mullins-Johnson. This paper argues that the common law adversarial trial process can actually contribute to wrongful convictions if judicial passivity is strictly adhered to. If the trial judge could have learned about the unreliability of the Crown expert testimony through independent research, he could have intervened to avoid a wrongful conviction. [ABSTRACT FROM AUTHOR]

Article 370 of the Indian constitution granted the State of Jammu and Kashmir 'special status' in the Indian Union. It was read down in a unilateral move by the Indian government in 2019. The State was stripped of its statehood and split into two Union Territories. The whole event was carried out without the consent of the people. The State's political leadership was detained and an information blockade was imposed. The local media could not function. Kashmir became like a blackhole from which no information was allowed to escape. Several Indian fact-finding teams visited Kashmir during this period, as they did during previous uprisings, to reveal facts from the ground situation. This paper examines multiple reports produced by these teams and seeks to understand the values and concerns that animate them. It considers of immense significance the professional and personal engagement of the authors with the politics of Kashmir and examines whether, and how, their identity, citizenship or ideological inclinations hamper their ability to produce unbiased reports. In doing so, the paper argues that such partisan teams and their biased reports contribute to a decontextualised and hierarchical (re)production of knowledge about Kashmir and its people. [ABSTRACT FROM AUTHOR]

Taking as its focus the 1991 movie High Heels by Spanish film director Pedro Almodóvar, this article argues that the multi-layered narrative style of Almodóvar's films make them especially suited to the examination of present-day culture and society. High Heels is the story of a troubled mother–daughter relationship compounded with the subplot of a judge who is entrusted with the investigation of the murder of the daughter's husband. A judge by day, at night he performs as a drag artist in a gay bar (as well as occasionally slipping into other roles). The article contends that, rather than the two plots being in a hierarchical relationship, they are intertwined. Bringing her own biographical perspective as a former judge, Ruth Herz considers the significance of the Almodóvar's judge Dominguez's role as the one who navigates the intricate labyrinth of facts, feelings, and fantasies, and who mediates between the two plots. The unique method employed by Dominguez in his quest for the 'truth' challenges the deep-seated notion among the general public and in the judiciary itself of what judgecraft is. He demonstrates – albeit in a typically scandalous, parodic way – how the process of judging continues to remain enigmatic even under democracy, despite the claim of transparency and open courts. [ABSTRACT FROM AUTHOR]

Background: Medical institutions are required to report suspected cases of child abuse to administrative agencies, such as child guidance centers in Japan. It is left to the discretion of the medical institutions whether to notify the family of the child or the center. However, it is unclear what kinds of measures are being taken to ensure a robust policy of notification versus non-notification and how notifying the family will affect the child. Methods: An unregistered questionnaire survey on reporting suspected child abuse cases to child consultation centers and notifying families was conducted by mail across 518 pediatric specialist training facility hospitals designated by the Japanese Pediatric Society. Results: Responses were received from 323 facilities (62.4% response rate), of which 5 facilities were excluded because of incomplete responses. Therefore, in all, 318 facilities were included in the analysis. The results showed that 59.8% of the facilities had a policy of notifying the family, 33.7% said the decision varies from case to case, and 6.6% did not have a policy of notifying the family. The facilities that had a policy of either notifying or not notifying the family were less likely to experience problems than those with a policy of deciding on a case-by-case basis. The proportion of cases in which some problems occurred was higher in the cases where families were notified than in the cases where they were not, with 51.4% of the children experiencing worsening of relationships with family members. In the cases where the families were not notified, the children were twice as likely to experience further abuse than in cases where the families were notified. Conclusion: Problems arise in the case of both notification and non-notification. It is necessary to examine background factors and specific methods of notification in the cases where problems arise.

This article discusses the evidentiary issues that arise at the compensation phase of the proceedings in the International Court of Justice ('the Court'), with special reference to the intersection of the rules of evidence and the law of State responsibility concerning reparations. It identifies a sequence of interactions between the two sets of norms throughout the compensation phase and even the prior merits stage. Various notions and approaches indicated by the Court that fall into either of the two sets of rules, such as the reversal of the burden of proof, lowering the standards of proof, equitable considerations and the global sum, should thus be read in conjunction with each other and not in isolation. Such an interplay aims ultimately to bring about a financial outcome that may afford minimum satisfaction to both parties in a dispute, even at the sacrifice of the coherence of judicial reasoning to some extent. In particular, the trade-off between the questions of proof and the reduction of the amount of compensation is seen as a practical adjustment of the financial outcome that could otherwise be unacceptable for the responsible State in the situation of evidentiary uncertainties. The remedies brought to the injured party might be minimal, but an invented alternative to nothing, which could have been the case had the rules of evidence and compensation been ordinarily applied. [ABSTRACT FROM AUTHOR]

Background: Medical institutions are required to report suspected cases of child abuse to administrative agencies, such as child guidance centers in Japan. It is left to the discretion of the medical institutions whether to notify the family of the child or the center. However, it is unclear what kinds of measures are being taken to ensure a robust policy of notification versus non-notification and how notifying the family will affect the child. Methods: An unregistered questionnaire survey on reporting suspected child abuse cases to child consultation centers and notifying families was conducted by mail across 518 pediatric specialist training facility hospitals designated by the Japanese Pediatric Society. Results: Responses were received from 323 facilities (62.4% response rate), of which 5 facilities were excluded because of incomplete responses. Therefore, in all, 318 facilities were included in the analysis. The results showed that 59.8% of the facilities had a policy of notifying the family, 33.7% said the decision varies from case to case, and 6.6% did not have a policy of notifying the family. The facilities that had a policy of either notifying or not notifying the family were less likely to experience problems than those with a policy of deciding on a case-by-case basis. The proportion of cases in which some problems occurred was higher in the cases where families were notified than in the cases where they were not, with 51.4% of the children experiencing worsening of relationships with family members. In the cases where the families were not notified, the children were twice as likely to experience further abuse than in cases where the families were notified. Conclusion: Problems arise in the case of both notification and non-notification. It is necessary to examine background factors and specific methods of notification in the cases where problems arise. [ABSTRACT FROM AUTHOR]

This article examines the amendments of the Regulations and Rules of the International Centre for Settlement of Investment Disputes (ICSID) recently approved by the Administrative Council of ICSID. The amendments are of all regulations and rules for proceedings that ICSID has long been authorized to administer – ICSID Convention and Additional Facility conciliation and arbitration and fact-finding proceedings. As part of the amendments, ICSID has also issued a new set of mediation rules. For context, the article briefly recalls previous amendments of the Regulations and Rules before discussing highlights of the newly amended Regulations and Rules. A concluding section points out that the amendments, which respond to many criticisms of investor-State arbitration under investment treaties (ISDS), will generally apply to all ICSID ISDS arbitrations initiated on or after the effective date of the amendments (1 July 2022). [ABSTRACT FROM AUTHOR]

One of the most persistent questions in criminal evidence relates to the use of (unchallenged) expert evidence. What does it mean to accept or reject (unchallenged) expert evidence? To what extent can, and should, an expert enter jurisprudential territory? Is the traditional model of trial by jury viable in our complex world? In order to clarify these pressing questions, we will examine the evidential structure underpinning expert witness testimony. We will show that what we usually and, at the cost of oversimplification, call 'evidence', comprises three distinct questions: (i) What does the data show? (ii) What should we believe? (iii) What should we do? From this insight, a number of corollaries fall into place. First, although decisions have to be informed through reasoned inferential procedures, they cannot be reduced to scientific propositions. As a result, fact-finders do not need to cede their decision-making prerogative as some proponents of expert-driven decision-making suggest. Secondly, criminal liability is not a scientific conclusion. Rather, so our argument, it is an individualistic normative construction that involves an inferential leap which is not warranted by any scientific (i.e. general) proposition. For the rectitude of the criminal verdict (or indeed any legal decision) does not map logically onto the possible treatment of scientific findings, that is, acceptance/rejection. Thirdly, our clarification of this evidential structure, which we call coherent decisionalism, provides a conceptual framework to understand and stabilise case law on expert witness testimony. [ABSTRACT FROM AUTHOR]

One of the most intractable, but significant problems in the theory of legal evidence concerns circumstantial evidence. The diversity and complexity of criminal cases cause some bottlenecks and difficulties in developing reasonable methods to prove the criminal issue by means of circumstantial evidence. The main purpose of this paper is to present more effective methods of fact-finding just by means of a system of circumstantial evidence (SCE). On the basis of analysis of the nature of circumstantial evidence, we find it necessary for the prosecution to construct a SCE in order to make a judge or jury accept the prosecution's conclusion as the best explanation. We also present a reasonable logical structure of such a system and address some legal and logical problems in introducing it. [ABSTRACT FROM AUTHOR]

The Article addresses three main questions. First: Why do some scholars and decision-makers take evidence assessment criteria as standards of proof and vice versa? The answer comes from the fact that some legal systems are more concerned with assessment criteria and others with standards; therefore jurists educated in different contexts tend to emphasize what they are more familiar with, and to assimilate to it what they are less familiar with. Second: Why do systems differ in those respects? Here the answer stems from the historical, institutional and procedural differences that explain why some systems are more concerned with assessment criteria and others with standards of proof. And third, assuming that both criteria and standards are necessary to legal decision-making about facts: How can a system work if it neglects one of these things? Here the Article argues that there is a functional connection between criteria and standards. The functional connection account is distinguished from a functional equivalence account, and some systems and jurisdictions are referred to in greater detail to support the functional connection claim.

In February 2019, some six years after the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed legal aid from a wide range of civil and family matters, the Government released its Post Implementation Review of the impact of LASPO and accompanying action plan. Publication is at a time when governmental policy extolling the virtues of mediation and online dispute resolution has the potential to have a profound effect on family law process. Against this background and having regard to the impact of the Covid-19 pandemic on the family justice system, this paper discusses the findings of the author's qualitative study on the experiences of litigants in person in civil and family courts. It suggests a typology of litigants in person, explains how and where litigants in person in child arrangements proceedings seek advice and the significant access to justice barriers arising from the compulsory requirement to attend a MIAM before commencing proceedings and attending the fact-finding stage without representation. Ultimately, the paper offers fresh evidence of the harsh realities of litigating without representation in the family court, which despite espousing an inquisitorial process, remains adversarial in character. [ABSTRACT FROM AUTHOR]

The paper provides a conceptual distinction between evidence assessment criteria and standards of proof. Evidence must be assessed in order to check whether it satisfies a relevant standard of proof, and the assessment is operated with some criterion; so both criteria and standards are necessary for fact-finding. In addition to this conceptual point, the article addresses three main questions: (1) Why do some scholars and decision-makers take assessment criteria as standards of proof and vice versa? (2) Why do systems differ as to criteria and standards? (3) How can a system work if it neglects one of these things? The answers to the first and second question come from the historical and procedural differences between the systems. The answer to the third focuses on the functional connection between criteria and standards. [ABSTRACT FROM AUTHOR]

We argue that the laws of probability promote coherent fact-finding and avoid potentially unjust logical contradictions. But we do not argue that a probabilistic Bayesian approach is sufficient or even necessary for good fact-finding. First, we explain the use of probability reasoning in Re D (A Child) [2014] EWHC 121 (Fam) and Re L (A Child) [2017] EWHC 3707 (Fam). Then we criticise the attack on this probabilistic reasoning found in Re A (Children) [2018] EWCA Civ 1718, which is the appeal decision on Re L. We conclude that the attack is unjustified and that the probability statements in the two cases were both valid and useful. We also use probabilistic reasoning to enlighten legal principles related to inherent probability, the Binary Method and the blue bus paradox. [ABSTRACT FROM AUTHOR]

Wittingly or unwittingly, civil society actors have long been faced with the task of documenting serious human rights violations. Thirty years ago, such efforts were largely organised by grassroots movements, often with little support or funding from international actors. Sharing information and best practices was difficult. Today that situation has significantly changed. The purpose of this article is to explore the changing landscape of civil society documentation of serious human rights violations, and what that means for standardising and professionalising documentation efforts. Using the recent Hisséne Habré case as an example, this article begins by looking at how civil society documentation can successfully influence an accountability process. Next, the article touches upon barriers that continue to impede greater documentation efforts. The article examines the changing landscape of documentation, focusing on technological changes and the rise of citizen journalism and unofficial investigations, using Syria as an example, as well as on the increasing support for documentation efforts both in Syria and worldwide. The changing landscape has resulted in the proliferation of international documentation initiatives aimed at providing local civil society actors guidelines and practical assistance on how to recognise, collect, manage, store and use information about serious human rights violations, as well as on how to minimise the risks associated with the documentation of human rights violations. The recent initiatives undertaken by international civil society, including those by the Public International Law & Policy Group, play an important role in helping to standardise and professionalise documentation work and promote the foundational principles of documentation, namely the ‘do no harm’ principle, and the principles of informed consent and confidentiality. Recognising the drawback that greater professionalisation may bring, it nevertheless concludes by applauding the initiatives undertaken thus far and calls for even more sustained cooperation, dissemination and training for civil society where possible.

Whereas the characteristics of human rights fact-finding largely vary depending on the typology and scope of the entity that carries it out, consensus seems to be developing that a common set of challenges to human rights fact-finding exists. This is especially so when carried out under United Nations auspices. For example, it has long been acknowledged that the very nature of the institution, sitting as it does at the crossroads of international politics, as well as the seemingly irresolvable tension between calls for human rights protection on the one hand, and State sovereignty on the other, present some structural challenges to human rights fact-finding. Furthermore, issues of coordination between the United Nations and other institutions (such as international governmental and non-governmental organisations, or international tribunals), as well as what some have called a ‘lack of institutional memory’ arguably often feature as regular traits among fact-finding mechanisms. In recent years, a further set of challenges has been added to the mix by additional requirements, featuring increasingly often in mandates, that instruct fact-finding mechanisms to make further determinations of facts (concerning, 'e.g.', the identity of those most responsible for the violations being documented, or the existence of an armed conflict) and even consider questions of law ('e.g.' the qualification of the violations as crimes under international law). Building on an expanding body of scholarship on the subject, as well as the author’s own experience with fact-finding efforts sitting at the intersection between traditional international human rights law and international criminal justice, this article argues: (i) that human rights fact-finding has evolved in three waves; (ii) that the third wave of human rights fact-finding is characterised by an “accountability turn”; and that (iii) this turn has brought about an additional set of challenges to the already thin-stretched capacity of UN human rights inquiries. By virtue of the arguments advanced in this article, the author posits that updating and solidifying the human rights fact-finding methodology can assist United Nations inquiries and other human rights fact-finders in strengthening the credibility of their findings.

In defense of their "explanatory" theory of the proof process, Professors Ronald Allen and Michael Pardo maintain that a successful theory of this kind should correspond to the way that jurors actually reason, to the structure of American trials, and to typical jury instructions. They also demand that such a theory should be normatively defensible. This response suggests that using a single theory to cover such disparate ground obscures more than it clarifies, given the important gaps between psychological, doctrinal, and normative aspects of the fact-finding process. [ABSTRACT FROM AUTHOR]

A paradigm shift is underway in scholarship on legal fact-finding. Recent work clearly and consistently suggests that persuasion is the product of purely comparative assessments of factual propositions. This paper comments on the philosophical roots of the comparative paradigm. It also highlights two outstanding challenges for the comparative approach: (1) specification of a purely comparative test for the beyond a reasonable doubt standard, and (2) articulation of the mechanics by which unspecific or disjunctive factual propositions are supposed to be weighed in comparative fact-finding. [ABSTRACT FROM AUTHOR]

First, the article addresses the claims that Allen and Pardo make on the abductive nature of fact-finding in the framework of relative plausibility, and it considers also whether abduction and inference to the best explanation (IBE) can be taken as the same. Second, the article addresses the critique that IBE/relative plausibility is too weak to comply with the criminal standard of proof. On these issues the article argues that it is inappropriate to equate abduction and IBE (the former is just a component of the latter), which also means that the relative plausibility account is better construed as an IBE claim rather than as abduction; and it argues that the relative plausibility account survives the critique based on the criminal standard of proof, because, simply put, fact-finders need to consider whether the best explanation of the evidence meets the relevant standard of proof. [ABSTRACT FROM AUTHOR]

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Documentation of human rights violations is a difficult and dangerous practice. The capacity of human rights organizations does not match the extent of the problems they encounter and the depth of the issues they illuminate. Documentation of human rights violations frames claim-making, manifestations of victimhood and citizenship. By examining documentation practices in Bangladesh, I show how information travels through a line of filters that determines and delimits what we can know about violations, what we can do to assist victims, and how we can prevent future abuses. I arguethat this filtering process is a selective political practice—one which is conditioned by the individual capacities, organizational resources, and political contexts through which exposures to violence become human rights cases. It is this—the ‘how' of documentation—that delimits what is made public and what is known about violations. [ABSTRACT FROM AUTHOR]

When the Editor-in-Chief of the Utrecht Journal of International and European Law (UJIEL) approached us with the possibility of guest editing a special issue related to public international law and policy, we felt the timing could not have been better. As academics at Utrecht University with the Netherlands Institute of Human Rights and Montaigne Centre for Judicial Administration and Conflict Resolution, we felt that a theme linking the world of lawyers with that of policymakers was important in order to examine the role of law in protecting human rights and security. Moreover, as Senior Counsel with the Public International Law & Policy Group (PILPG), which celebrated its 20-year anniversary in 2016, we welcomed the idea to link academic scholarship with the work of PILPG. After all, PILPG’s founders, Professor Paul Williams and Professor Michael Scharf, have themselves acted as bridges between scholarship and practice for years. As a result, this special edition is not only intended to highlight the extraordinary work carried out by PILPG on issues of law and policy around the world, but also to emphasise the importance of linking scholarship with practice and addressing contemporary issues impacting the world in which we live. PILPG’s motto ‘lawyering peace’ requires reflection on the role that law can play in helping to bring about the peaceful resolution of serious problems affecting individuals and societies as a whole. This special edition of UJIEL, addressing a variety of themes, does just that.

Expertise gains increasing acceptance and importance at trials in China. Currently, the forensic examination quality management system of China has been preliminarily established. There are problems, however, for example, laws and regulations related with forensic examination are not comprehensive, forensic institutes pursue their own economic profits excessively and judges sometime have undue blind faith in scientific evidence in fact-finding. These are hindering forensic examination from being put into full play duly. In 2005, the Decision of the Standing Committee of the National People's Congress on the Administration of Forensic Examination strengthened the neutrality of forensic institutes. The Criminal Procedure Law and the Civil Procedure Law revised in 2012 initially set up the expert assistant system, which is expected to break the excessively credulous but unjustified belief in scientific evidence and solve pertinent problems. We need to focus on the following aspects: First and foremost developing a unified set of rules on forensic examination; secondly, judges need to strengthen their own ability to review scientific evidence and determine its reliability; thirdly, we should actively promote fundamental legal education reform to remedy the insufficiency of legal understanding of forensic science; and finally, the existing expert assistant system must be further improved to help judges and litigants effectively to identify and use expertise.

Human Rights Watch (HRW), Amnesty International (Amnesty), and other like-minded organisations have become major actors in the world of international humanitarian law (IHL). Every year they issue hundreds of publications purporting to document violations and to promote IHL enforcement. These publications are ubiquitously cited in the media, and used as source material for governmental and United Nations inquiries, quasi-judicial bodies, the International Criminal Court, academic studies, and other frameworks. Yet, despite the increase in the number, role and influence of non-governmental organisations (NGOs) working on IHL enforcement, conflicts and civilian deaths show no signs of abating. Among the factors that reduce NGO impact in these areas is the demonstrated weakness of these organisations in the realm of fact-finding, and the tension between these activities and emphasis on political advocacy. This article will thus analyse both objective and subjective aspects of NGO fact-finding during armed conflict, including mandates and methodology, selectivity, the application of legal standards, military expertise and sourcing. These issues will be examined through case studies of Amnesty and HRW publications on the conflicts in Yemen, Ukraine and the 2014 Gaza War. The article will conclude with recommendations for NGOs and the actors with which they interact. [ABSTRACT FROM AUTHOR]

According to the conventional wisdom, rape is generally a case of ‘one person’s word against another’s’ and, in the absence of independent evidence, judgements regarding the truth or otherwise of an allegation are influenced by ‘rape myths’ and gender stereotypes. The meaning of ‘one person’s word against another’s’, however, and the extent to which it accurately describes the evidence in most rape cases, or usefully explains case disposal, are largely unexplored. This article subjects the conventional wisdom of rape as ‘one person’s word against another’s’, and the implicit claims and assumptions underpinning it, to close critical scrutiny. Drawing on original empirical data, I argue that the concept of ‘one person’s word against another’s’ is vague, ambiguous and uninformative. It tells us virtually nothing about what rape cases look like evidentially, still less about case progression, and presents a partial and misleading view of English criminal proceedings and the process of proof. If we are to better understand attrition in rape cases, we need to meaningfully engage with the contentious issue of witness credibility and reliability—not only in the absence of independent evidence that supports or corroborates a witness’s account, but in the presence of evidence that undermines or contradicts it. [ABSTRACT FROM AUTHOR]

The use of chemical weapons in the armed conflict in Syria has attracted universal and widespread condemnation and has led to unified responses by various international bodies. This article examines the international community's responses to chemical weapons use in Syria from the perspective of international law. It also analyzes the potential options for accountability that are available for chemical weapons-related crimes. The intention is ultimately to make the case that the special status the international community has ascribed to chemical weapons crimes could be harnessed to create an accountability mechanism, such as an ad hoc tribunal, that could help pave the complex road towards a negotiated peace. [ABSTRACT FROM AUTHOR]

The main characteristic of the new Code of Criminal Procedure, 2011, which is based on adversial principle, is changed position of the main subjects. The public prosecutor gets more active role. It is head of the pre-investigative procedure and the investigation. At trial, the role of the parties emphasized, while the role of the court passivated. The Court adjudicate and manage the process, while in the presentation of evidence, for the proper and complete determination of the facts, his role significantly diminished. The court is not obliged ex officio to determine the truth, and the principle of truth is omitted from the basic principles of criminal procedure. Evidentiary initiative is, largely, up to the parties, while the court granted subsidiary role. Basis of the work is the thesis that the Code of Criminal Procedure from 2011, based on the truth principle, which is also the goal of the procedure. In fact, while working on the development of the legal text, and after of the adoption, to the beginning of its application in full range, in professional community there were lots of papers, which cast doubt on the principle of truth existence, in the currently valid procedural law of Serbia. Although this principle is not actually explicitly stipulated in the text of the new CPC, the author proves his existence by analyzing of certain provisions of the law, which has significantly altered the position of the main criminal procedural subjects, in terms establishing the facts in criminal proceedings. The author argues that the truth about a criminal matter remains the highest goal of the procedure, despite the fact that the concept of criminal proceedings is set on the adversial model od criminal proceedings.

Recent studies have highlighted instances where findings of fact reached by international criminal tribunals appear not to be adequately supported by the evidence. These works have typically focused on evidential issues, such as witnesses' fading memories, cultural differences, and more sinister aspects (such as financial incentives) as the root causes for such discrepancies. However, this article argues that these accounts are incomplete, as they do not recognise difficulties arising from the judicial evaluation of, and reasoning on, the evidential record, which poses potentially insurmountable challenges to reliable fact-finding by international criminal tribunals. This article highlights recent differences of opinion between judges on how evidence should be weighed and evaluated. It points to some issues arising from the enormity of the factfinding role in international criminal trials and the procedural framework embraced by the international criminal tribunals. It discusses tools to assist fact-finding, and their potential applicability to international criminal trials. [ABSTRACT FROM AUTHOR]

This article demonstrates how different actors in international criminal trials could utilise Bayesian Networks ('BayesNets'), which are graphicalmodels of the probabilistic relationships between hypotheses and pieces of evidence. We argue that Bayes Nets are potentially useful in both the examination of international criminal judgments and the processes of trial preparation and fact-finding before international criminal tribunals. With the use of a practical case study based on a completed case from the International Criminal Tribunal for the former Yugoslavia (ICTY), we illustrate how Bayes Nets could be used by international criminal tribunals to strengthen judges' confidence in their findings, to assist lawyers in preparing for trial, and to provide a tool for the assessment of international criminal tribunals' factual findings. [ABSTRACT FROM AUTHOR]

In order to gain an understanding of journalists’ conceptions of what being factual means, the present work supplements the existing insights of journalism studies and the sociology of knowledge and philosophy with data about journalists’ beliefs regarding the importance of detached observation and reporting things as they are, spanning 62 countries (N = 18,248). In essence, our goal is to contribute to a future theoretical account of why journalists possess the beliefs that they dovis-à-vistruth-seeking and knowledge-acquisition. Data point to a significant relationship between reporters’ level of freedom and their conceptions of knowledge and reality. We discuss the implications of these findings for the debate about the possibilities of universality and context-dependence of journalistic fact-finding. [ABSTRACT FROM AUTHOR]

Whereas the characteristics of human rights fact-finding largely vary depending on the typology and scope of the entity that carries it out, consensus seems to be developing that a common set of challenges to human rights fact-finding exists. This is especially so when carried out under United Nations auspices. For example, it has long been acknowledged that the very nature of the institution, sitting as it does at the crossroads of international politics, as well as the seemingly irresolvable tension between calls for human rights protection on the one hand, and State sovereignty on the other, present some structural challenges to human rights fact-finding. Furthermore, issues of coordination between the United Nations and other institutions (such as international governmental and non-governmental organisations, or international tribunals), as well as what some have called a 'lack of institutional memory' arguably often feature as regular traits among fact-finding mechanisms. In recent years, a further set of challenges has been added to the mix by additional requirements, featuring increasingly often in mandates, that instruct fact-finding mechanisms to make further determinations of facts (concerning, e.g., the identity of those most responsible for the violations being documented, or the existence of an armed conflict) and even consider questions of law (e.g. the qualification of the violations as crimes under international law). Building on an expanding body of scholarship on the subject, as well as the author's own experience with fact-finding efforts sitting at the intersection between traditional international human rights law and international criminal justice, this article argues: (i) that human rights fact-finding has evolved in three waves; (ii) that the third wave of human rights fact-finding is characterised by an "accountability turn"; and that (iii) this turn has brought about an additional set of challenges to the already thinstretched capacity of UN human rights inquiries. By virtue of the arguments advanced in this article, the author posits that updating and solidifying the human rights fact-finding methodology can assist United Nations inquiries and other human rights fact-finders in strengthening the credibility of their findings. [ABSTRACT FROM AUTHOR]

Wittingly or unwittingly, civil society actors have long been faced with the task of documenting serious human rights violations. Thirty years ago, such efforts were largely organised by grassroots movements, often with little support or funding from international actors. Sharing information and best practices was difficult. Today that situation has significantly changed. The purpose of this article is to explore the changing landscape of civil society documentation of serious human rights violations, and what that means for standardising and professionalising documentation efforts. Using the recent Hisséne Habré case as an example, this article begins by looking at how civil society documentation can successfully influence an accountability process. Next, the article touches upon barriers that continue to impede greater documentation efforts. The article examines the changing landscape of documentation, focusing on technological changes and the rise of citizen journalism and unofficial investigations, using Syria as an example, as well as on the increasing support for documentation efforts both in Syria and worldwide. The changing landscape has resulted in the proliferation of international documentation initiatives aimed at providing local civil society actors guidelines and practical assistance on how to recognise, collect, manage, store and use information about serious human rights violations, as well as on how to minimise the risks associated with the documentation of human rights violations. The recent initiatives undertaken by international civil society, including those by the Public International Law & Policy Group, play an important role in helping to standardise and professionalise documentation work and promote the foundational principles of documentation, namely the 'do no harm' principle, and the principles of informed consent and confidentiality. Recognising the drawback that greater professionalisation may bring, it nevertheless concludes by applauding the initiatives undertaken thus far and calls for even more sustained cooperation, dissemination and training for civil society where possible. [ABSTRACT FROM AUTHOR]

The conjunction paradox arises when a claim requires proof of multiple elements and the likelihood of some elements are at least partially independent of the likelihood of others. In that situation, probability theory may dictate that the conjunction of the elements is less likely than their disjunction, implying that a defendant should not be found liable, even though each element is probably true when considered in isolation. Nonetheless, American jury instructions reject this implication, and many scholars of proof have sought to construct normative theories to justify that rejection. This article collects and critiques two families of arguments about the conjunction paradox. First, I explain why an explanatory conception of proof cannot eliminate the paradox. Second, I show why various mathematical alternatives to standard probability theory are normatively deficient when applied to legal fact-finding. Instead, I suggest that the best way to resolve the paradox is through instructions that encourage juries to make appropriate adjustments for conjunctive and disjunctive likelihoods without having to frame their analyses in mathematical terms. [ABSTRACT FROM AUTHOR]

This paper deals with thelukaa–lukeecustomary system of fact-finding among the Kuttayee Oromo in Ethiopia. Literature documents the prevalence of traditional methods of fact-finding, but it does not provide enough details on why these methods are still practiced. A detailed empirical analysis of how thelukaa–lukeesystem of fact-finding is functioning enables us to understand the role the traditional fact-finding mechanisms play in contemporary Ethiopia and whether they are outmoded and in dire need of replacement or, on the contrary, serve an important function that is worth preserving. This paper basically argues that the customary justice system of fact-finding has survived due to several inter-related factors: it is value oriented, less expensive, entails face-saving outcomes and is more flexible. Customary laws are affected by local elders and ritual-religious leaders with much tolerance compared to the state court, which is rigidly practiced in conformity with formally set rules and regulations. The findings of this study indicate that the social compulsion and belief system which play a central role in fact-finding are also prominent in sanctioning. This implies that the mechanisms of fact-finding fit in with the way the whole system of customary justice functions. In the current Ethiopian context, customary mechanisms play an important role in maintaining social order and reducing the potential burdens of state court and are worth preserving. [ABSTRACT FROM AUTHOR]

The Srebrenica tragedy has given rise to many responses of political, judicial and semi-judicial nature. One mechanism that has perhaps received less attention than the adjudicatory performances is the institution of inquiry. This article contrasts the two most prominent formal inquiries into the fall of Srebrenica by the UN and the Dutch NIOD and it offers valuable insights into the role and authority of inquiry exercises regarding international affairs and moments of crisis. The article also examines the function of ex post facto inquiries as compared to judicial exercises. Given that inquiry processes generally establish a greater set of facts which are not tied up to legal categories, it is argued that the institution of inquiry may fulfil a complementary function to legal processes as it can offer a more comprehensive account of events and thus address societal demands for the accountability of a wider range of actors. [ABSTRACT FROM AUTHOR]

Intractable international conflicts and difficult or intractable family conflicts have much in common. Relationships are damaged or destroyed, escalation causes parties to become polarized and make bad decisions, communication is strained or nonexistent, and competition and coercion take the place of collaboration. Similarities also exist in the realm of solutions, and those caught in (or intervening in) difficult family conflicts can learn much from the strategies and tactics of international peacebuilders. This article describes eight steps that peacebuilders at both the family level and the international level can take to make very damaging conflicts more constructive. Key Points for the Family Court Community: Limiting escalation is important in both contexts., Preventing or correcting misunderstandings is key to resolution in both contexts as well., Be sure you are focusing on the real problem(s)., Get the facts straight (and agreed upon) before making agreements., Healing past wrongs is important for long term stability., Working both within and beyond the zone of possible agreement (ZOPA) is essential in both contexts., Working to improve relationships helps all parties and improves the outcome. [ABSTRACT FROM AUTHOR]

When the Editor-in-Chief of the Utrecht Journal of International and European Law (UJIEL) approached us with the possibility of guest editing a special issue related to public international law and policy, we felt the timing could not have been better. As academics at Utrecht University with the Netherlands Institute of Human Rights and Montaigne Centre for Judicial Administration and Conflict Resolution, we felt that a theme linking the world of lawyers with that of policymakers was important in order to examine the role of law in protecting human rights and security. Moreover, as Senior Counsel with the Public International Law & Policy Group (PILPG), which celebrated its 20-year anniversary in 2016, we welcomed the idea to link academic scholarship with the work of PILPG. After all, PILPG's founders, Professor Paul Williams and Professor Michael Scharf, have themselves acted as bridges between scholarship and practice for years. As a result, this special edition is not only intended to highlight the extraordinary work carried out by PILPG on issues of law and policy around the world, but also to emphasise the importance of linking scholarship with practice and addressing contemporary issues impacting the world in which we live. PILPG's motto 'lawyering peace' requires reflection on the role that law can play in helping to bring about the peaceful resolution of serious problems affecting individuals and societies as a whole. This special edition of UJIEL, addressing a variety of themes, does just that. [ABSTRACT FROM AUTHOR]