CONTENTS

A. Introduction

B. Evolution of United Nations Monitoring Standards

C. Non-United Nations monitoring standards

A. Introduction

1. Many of the monitoring principles and approaches set forth in this Manual have their origins in previous efforts of the United Nations and other international organizations to guide fact-finders. This Chapter reviews the historical origins of such efforts and thus places this Manual in its historical context.

B. Evolution of United Nations Monitoring standards

2. Various sets of rules of procedure exist to help guide fact-finders. The first international codification of fact-finding procedure was the Hague Convention for the Pacific Settlement of Disputes of 1907, 36 Stat. 2199, T.S. No. 536. It provided for a commission of inquiry that would be constituted by agreement between two disputing states and set out rules of procedure for the inquiry. Though the Hague Convention's inquiry mechanism received little use, the procedural rules continue to serve as a model for fact-finding which informed the development of the present Manual.

3. In 1970 the Secretary-General issued Draft Model Rules of fact-finding procedure for UN bodies dealing with violations of human rights. Although these Draft Model Rules were adopted in 1974 in substantially abbreviated form by the UN Economic and Social Council, they have served as the framework for rules of fact-finding commissions. The 25 Draft Model Rules are divided into eleven sections covering applicability, constitution of the ad hoc body, agenda of meetings, officers, secretariat, languages, voting and conduct of business, cooperation with member States, oral and written testimony and other sources of information, records, and reports. The rules allow a commission to make recommendations and issue a minority report. They also permit the concerned State to submit evidence, to appoint a representative, and to put questions to witnesses, but they do not allow the State to make recommendations for the agenda or to place obstacles in the way of the attendance of witnesses. Consent of the concerned State is required for the ad hoc body to enter that State. All evidence is admissible, although its use is subject to the discretion of the commission. Witnesses are placed under oath and commission members swear to perform their duties "honourably, faithfully, impartially and conscientiously." A hearing may be conducted by one or more members.

4. A more recent statement of general standards can be found in the Declaration on Fact-finding by the UN in the Field of the Maintenance of International Peace and Security, U.N. Doc. A/RES/46/59, Annex (1992), which provides in part the following principles:

1. In performing their functions in relation to the maintenance of international peace and security, the competent organs of the United Nations should endeavour to have full knowledge of all relevant facts. To this end they should consider undertaking fact-finding activities.

2. For the purpose of the present Declaration fact-finding means any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent United Nations organs need in order to exercise effectively their functions in relation to the maintenance of international peace and security. . . .

6. The sending of a United Nations fact-finding mission to the territory of any State requires the prior consent of that State, subject to relevant provisions of the Charter of the United Nations. . . .

16. In considering the possibility of undertaking a fact-finding mission, the competent United Nations organ should bear in mind other relevant fact-finding efforts, including those undertaken by the States concerned and in the framework of regional arrangements or agencies.

17. The decision by the competent United Nations organ to undertake fact-finding should always contain a clear mandate for the fact-finding mission and precise requirements to be met by its report. The report should be limited to a presentation of findings of a factual nature. . . .

25. Fact-finding missions have an obligation to act in strict conformity with their mandate and perform their task in an impartial way. Their members have an obligation not to seek or receive instructions from any Government or from any authority other than the competent United Nations organ. They should keep the information acquired in discharging their mandate confidential even after the mission has fulfilled its task.

26. The States directly concerned should be given an opportunity, at all stages of the fact-finding process, to express their views in respect of the facts the fact-finding mission has been entrusted to obtain. When the results of fact-finding are to be made public, the views expressed by the States directly concerned should, if they so wish, also be made public. . . .

5. As experience has evolved in the various UN, OSCE, and other international human rights field operations, further monitoring standards have been developing. Those standards and practices have been summarized, for example, in La Guía Metodológica para el Trabajo de la División de Derechos Humanos de la Misión de Observadores de las Naciones Unidas para El Salvador) (Guidelines for the Work of the Human Rights Division of the United Nations Observer Mission for El Salvador (ONUSAL) (1992); International Civilian Mission in Haiti - UN/OAS (MICIVIH), Manuel d'Haiti (1993), UN Mission in Guatemala (MINIGUA), Manuel de Verification (1994), Human Rights Field Operation in Rwanda, HRFOR Field Guidance (1996); High Commissioner/Centre for Human Rights, Field Guide for International Police Task Force Monitors of the Peace Implementation Operation in Bosnia and Herzegovina and CIVPOL Officers of the United Nations Transitional Administration in Eastern Slavonia (1996). Those standards, practices, and experiences have been the immediate basis for the present Manual.

6. Although each human rights field operation receives its own mandate from the Security Council or by agreement with the host Government, several operations have received mandates similar to the United Nations Observer Mission for El Salvador (ONUSAL):

The Mission's mandate shall include the following powers:

a. To verify the observance of human rights in El Salvador;

b. To receive communications from any individual, group of individuals or body in El Salvador, containing reports of human rights violations;

c. To visit any place or establishment freely and without prior notice;

d. To hold its meetings freely anywhere in the national territory;

e. To interview freely and privately any individual, group of individuals or members of bodies or institutions;

f. To collect by any means it deems appropriate such information as it considers relevant.

While such a procedural mandate appears to be quite comprehensive and adequate, the challenge facing most human rights operations has been actually employing these techniques in practice when faced with opposition from local authorities who are unaware of the mandate and covert resistance from national authorities who wish to test the resolve of the UN human rights field operation.

C. Non-United Nations monitoring standards

7. In addition, regional organizations have implemented monitoring standards to govern the fact-finding process. The Inter-American Commission has one of the best developed and respected procedures for on-site fact-finding. It has sponsored numerous on-site observations in conjunction with the investigation of human rights in Member States. See Edmundo Vargas, Visits on the Spot: The Experience of the Inter-American Commission on Human Rights, in International Law and Fact-Finding in the Field of Human Rights 137-150 (Bertie Ramcharan ed. 1982).

8. Many intergovernmental organizations have formulated their own fact-finding procedures. In addition, the International Law Association met in Belgrade during 1980 and adopted by consensus a set of rules ostensibly designed for use by both intergovernmental organizations and nongovernmental organizations, but actually more applicable to intergovernmental fact-finding efforts. The Belgrade Minimum Rules of Procedure for International Human Rights Fact-finding Visits, 75 Am. J. Int'l L. 163 (1981).

9. Several authors have written about fact-finding procedures. For a more detailed examination of monitoring standards relevant to fact-finding investigations, see the references contained in the bibliography to this Manual.