The Duck of Minerva

“Reversing the Burden of Proof”: Tactic or Norm

14 September 2012

An interesting observation I took away from this meeting is the frequency with which I heard practitioners talking about the need to “reverse the burden of proof” from advocates (to prove that a particular weapon causes significant humanitarian harm) to governments (to prove that it doesn’t). As Richard Price documented in his study of the landmines campaign and John Borrie documented in his landmark genealogy of the cluster munitions convention, the ability to shift the terms of debate in this way is a pivotal component of successful campaigns in the area of weapons.

At the same time, this appears to be a tactic used during specific campaigns only, rather than a broad principle itself being proposed and promulgated throughout the human security network. I wonder what humanitarian disarmament advocacy might look like if, rather than going to governments to deal with specific weapons issues in a piecemeal manner, advocates pushed for governments to document the humanitarian harms of their weaponry and justify their use on a regular basis.

Indeed, this latter is precisely the point of the Casualty Recording Campaign, spearheaded by the Oxford Research Group in collaboration with IKV Pax Christi and, which would require states to do body counts in armed conflicts and report their results to the international community. While the campaign is conceived primarily to ensure the dignity and recognition of victims, if its goals were achieved it could also be a mechanism for “reversing the burden of proof” in a wider and more systematic sense around weapons issues – in short, make it more of a constitutive humanitarian norm (much like the precautionary principle in the area of environmental health) and less like a tactic to be used only in discrete cases.