Training Manual on Human Rights Monitoring - Chapter VII: Information Gathering
CONTENTS
A. The information gathering process
B. Developing contacts and establishing a presence in the community
E. Verification of information
G. Evaluating direct testimony
I. Evidence for criminal prosecution
A. The information gathering process
1. The principal objective of monitoring is to reinforce State responsibility to protect human rights. Human rights monitors collect prima facie information about human rights problems and illustrative patterns of violations. The process of collecting such information requires considerable effort. While the word "monitoring" might superficially imply a passive process of observing and reporting, HROs will need to establish a more active information-gathering approach. HROs rarely are direct witnesses to serious violations, so that they can accurately report incidents they see. Instead, HROs learn of such incidents from victims or other witnesses. Accordingly, monitoring requires careful techniques for collecting accurate and precise information. Information-gathering requires thorough inquiries, follow-up, and analysis; sound information is essential to producing well-documented reports, which can then be used to encourage action by the authorities.
2. Indeed, HROs do not restrict their work simply to observing and reporting, because the human rights operation's objective is generally to help redress human rights problems and prevent future violations. The human rights operation should have a presence at all levels of the society. The local authorities should be aware that the operation reports not only human rights violations which have occurred but also the follow-up action taken by local authorities to redress the situation. Hence, the monitoring and reporting carried out by HROs can help to put pressure on local authorities to address and follow up on particular human rights problems. Often, this follow up action will not only redress human rights violations, but also serve to prevent human rights violations in the future.
3. After identification of the human rights problems to be monitored under the mandate, human rights monitoring is principally pursued by means of inquiries to amass the elements of information, allowing prima facie assessments on the existence or non-existence of violations. These inquiries include a number of phases and dimensions:
(a) identifying which problems to pursue under the mandate;
(b) developing contacts and establishing a presence in the community;
(c) collecting testimonies and complaints;
(d) pursuing an inquiry meant to verify information concerning the violation, as well as the response of the authorities, including the military, police, and the legal system as relevant;
(e) if at this point, it is established that no human rights violation occurred, the case is closed;
(f) if the inquiry establishes that there has been a violation, the HROs will make recommendations and will take steps required by their mandate. (Note that different levels of information may be needed to take increasingly assertive action.) See Chapter XIII "Following-Up and Seeking Corrective Action".
(g) during the entire process, HROs will seek to assure that the responsible authorities are acting diligently and efficiently. They will especially monitor the conduct of the police and/or military in respecting human rights and the respect of legal procedures in regard to arrest, detention, and trial as well as the guarantee of security for witnesses. See Chapter XII "Trial Observation and Monitoring the Administration of Justice".
(h) In general, HROs do not attempt to gather evidence for criminal prosecution. When they are confronted with such evidence, they should ordinarily submit the evidence to those authorities who can be expected to investigate further and bring the matter to justice. See Chapter VII - I "Evidence for criminal prosecutions".
B. Developing contacts and establishing a presence in the community
4. In order for HROs to collect information and gain an understanding about the situation, officers must develop contacts with knowledgeable individuals, human rights organizations, other nongovernmental organizations, local government officials, and other relevant actors working in their area. Lawyers and journalists may be particularly good sources of information because they are usually aware of relevant developments. HROs should be sensitive to the fact that violations against certain vulnerable groups - for example women - may be more difficult to detect through traditional channels for information gathering. They may therefore need to expand their search in order to ensure that certain groups or categories of persons are given proper attention and sufficient information is gathered on possible violations against them. Developing contacts requires active efforts to contact individuals and organizations, to arrange periodic meetings, etc. Further, HROs must use the sources that they cultivate. They should repeatedly return to their on-site contacts for more information.
5. In this context HROs should develop relations with local Government officials, including police and military officials, judges and other officials concerned with the administration of justice. Such contacts and a visible presence will help to discourage violations. Such governmental contacts will help identify which officials can be helpful when different problems arise. In addition, HROs should regularly visit prisons, hospitals, morgues, and areas where the population is most at risk (such as slums, working class districts, and rural communities).
6. As mentioned above, nongovernmental organizations (NGOs) can usually provide much valuable information and can assist the human rights operation in many ways. Some human rights NGOs focus particularly on increasing general public awareness on human rights, educating the public on human rights, lobbying for improved human rights standards, working for minorities, working for women's human rights, protecting the rights of the child, and/or monitoring specific categories of human rights violations (e.g., disappearances, torture, etc.). Other NGOs work in areas which are not precisely within the domain of human rights, but which have much in common, e.g., protection of the environment, consumer rights, mine removal, etc. Some NGOs have an entirely local or national membership. Others function at the regional or international levels.
Human rights operations should cooperate and support the efforts of NGOs whose parallel activities can reinforce and assist the UN human rights operation. This is particularly important in view of the usually limited human and financial resources of field operations. In these cases, it is crucial for the operation to develop networks with relevant local organizations who are able to provide information so as to be able to best conduct its monitoring functions. At the same time, in dealing with non-governmental organizations, field operations should pay particular attention to ensure that their work reinforce NGOs capacity vis-à-vis national governments, and to avoid duplicating their functions, replacing their activities, or usurping their legitimate role in national societies.
Human rights operations should promptly identify the NGOs active in the country to determine which can provide information, which can handle matters outside the mandate of the operation (e.g., child abuse, food assistance), which can help with human rights education and promotion, etc.
7. It is important to develop contacts before a crisis situation arises. Once the problem has arisen it will be more difficult to develop the relationships necessary for contacts to be useful.
8. In developing and using contacts, HROs should assess the perspective of the contacts. Ideally, officers should identify at least some contacts who have the least apparent bias as to human rights issues which may arise. In any case, HROs need to understand and compensate for the bias of contact persons who may provide information.
9. Information-gathering requires actively pursuing all credible leads regarding human rights abuses. HROs must be available and ready to move at any time to receive information from a person who considers himself or herself to be a victim of a violation. When HROs learn of a situation (such as a demonstration, verified enforced disappearance, forced eviction, or mass arrest), they should take steps to gather relevant information from indirect sources and then to identify and interview witnesses. HROs should consider carefully whether going to the scene of an event will assist with the inquiry or might endanger sources of information and, in case of doubt, always consult with other relevant persons in the operation. In general, it is wise to be somewhat circumspect about visiting the site of an incident until the HRO knows enough to determine whether the benefit will considerably outweigh any potential risk to the officer or sources of information.
10. For more detailed information on identifying and interviewing witnesses see Chapter VIII "Interviewing".
11. Often individuals identify themselves by coming forward in search of protection or recourse for past violations of human rights. The number of individual communications reaching the HROs depends on their credibility with the local population, NGOs, churches, and other organizations. The need for credibility and information provides another reason why officers should develop good relations with human rights and other organizations working in their area.
12. The objective of an inquiry is to ascertain the circumstances and acts that led to an alleged violation, for example suspicious death, an illegal detention, internal displacement, a discriminatory eviction, or other human rights violation. Such an inquiry is necessary, whatever the category of violation communicated to the HROs. The response, however, will vary according to the kind of violation which must be established, for example, death of a victim; disappearance; torture; cruel, inhuman or degrading treatment; serious and frequent threats to individual liberty and security; discriminatory discharge from employment; violence against women; or the exercise of the right of expression and association. The nature of the response will also vary depending upon the degree of certainty indicated by the information available. For example, a relatively small amount of information may only require discreet inquiries with regular contacts. A greater degree of information may require more direct inquiry with other witnesses. More information may indicate the need for the preparation and ultimately the undertaking of an on-site visit. If HROs encounter an urgent and grave situation, the response may by necessity be quicker and less circumspect.
13. After a significant amount of information has been collected, HROs may need to make inquiries with the authorities as to their response. Depending upon the response of the authorities to the inquiry and the situation, more information may be needed or other steps should be considered, for example, appeals to higher level officials in the local Government, invoking the assistance of higher level officers within the human rights field operation, various forms of publicity, etc. Several such follow-up measures must be determined by the head of the field operation.
14. Depending on the various aspects of their mandate, HROs may have special forms used for inquiries with regard to individual complaints. In some situations, complaint forms may be used to decide on the admissibility of the case, based on the seriousness of the matter, and on the precision of the inquiry. It is therefore usually important to complete the inquiry forms properly. A sample form has been provided at the end of Chapter XIX in Appendix 1. It should be modified to fit the monitoring operation's mandate.
15. When interviewing victims or witnesses, the HRO need not pose questions in the sequence of the form. It is, however, essential to keep in mind the content of the case form, so that no point will be overlooked during the interview even if some points remain without answer.
16. After the interview, HROs can complete the forms based on their interview notes. It is particularly important to reorganize the facts and events chronologically regardless of the order in which the victim or witness presented the information. See Chapter XIX "Human Rights Reporting".
17. The information requested in the form is the most important but is not exhaustive. Additional information can be provided on a separate sheet of paper, or can be attached to the form, so long as the extra pages are identified by the file number but not the victim's name.
E. Verification of information
18. After having received a communication, the HROs must check the information received. It is essential to verify the accuracy of the reported human rights violations before taking any steps. The officers should verify the substance of the complaint with any human rights organization or association having knowledge of the matter. Further, the officers may request assistance from any human rights organization or entity with knowledge of the case under scrutiny.
19. In addition, the HROs should determine whether the family, friends, and neighbours of the apparent victim, as well as other witnesses, can corroborate the facts in the complaint. The witnesses should be individually interviewed as promptly as possible and should be assured that the HROs will remain in frequent contact with them. They must be informed that the HROs will endeavour to assure their protection during and after the inquiry, but that their safety cannot be guaranteed. Additionally, the witnesses should be asked whether they wish to remain anonymous. More details on interviewing victims and witnesses of human rights violations are provided in Chapter VIII "Interviewing".
20. A recurring problem with fact-finding regarding human rights abuses is difficulty in evaluating the information obtained during on-site visits or interviews. HROs, after all, lack the capacity to verify every detail of the information they receive. Indeed, it is rare for the HRO to "get to the bottom" of most violations as would occur in the criminal justice system. In general, however, the HRO seeks to develop at least a prima facie analysis based upon the degree of relevance, veracity, reliability, and probity of the information which has been collected.
21. The most commonly applied rule of reliability in human rights fact-finding is the principle that information should be consistent with material collected from independent sources. Related to the idea of consistency of information collected is the concept that reliability can be assessed by the degree to which a particular piece of information fits in context with other materials which have been amassed. Hence, the HRO must consider not only the specific information gathered, but also the officer's sense of whether the whole story seems credible when all the pieces of the puzzle are put together.
22. Another aspect of reliability relates to the degree of certainty which should be applied. The completeness expected from the HROs' fact-finding procedures will vary considerably depending upon the purpose for collecting the information. Instead of a specific "burden of proof" as might be applicable in the criminal justice system, there exists a continuum of degree of certainty and quantity of information in relation to the action to be taken.
23. For example, if the HRO attempts to gather complaints and other information so as to inform a lower level Government official of the allegations with the hope that the Government will initiate an investigation, the degree of care and completeness of the fact-finding procedure might be necessarily abbreviated. This lower level of certainty would only require the need for further inquiry at different levels of visibility. It should be recalled, however, that even an inquiry does carry some degree of implied criticism and visibility. The highest level of certainty would be required for the most coercive and visible actions. Hence, for a finding that human rights abuses have been perpetrated, the most complete process and a greater level of certainty would be required. To identify a perpetrator publicly the human rights operation may need to possess very substantial information (possibly even enough to meet the beyond-a- reasonable-doubt standard applied in the criminal justice system), because such a public identification may result in prosecution or possibly reprisals. In any case, such an identification of the perpetrator would represent a significant policy issue for the leadership of the human rights operation and would not be determined by the individual HRO.
G. Evaluating direct testimony
24. HROs can use a wide range of techniques to corroborate the direct testimony of victims and eyewitnesses. During the interview itself, the interviewer should test the internal consistency and coherence of the testimony. The interviewer can probe for inconsistencies by returning to the same subject several times but with different questions. The HRO should be careful to note, however, that often communication difficulties can create inconsistencies. The interviewee should be given the opportunity to provide clarifying information. (1)
25. In general, oral testimony is evaluated based upon the demeanor and overall credibility of the witness. The HRO should, however, be sensitive to the fact that cultural differences and the nature of the testimony may create embarrassment and difficulty in communication. For more detailed information on assessing the credibility of an interviewee, see Chapter VIII "Interviewing".
26. HROs should remember to factor into their analysis the perspective or bias of a witness. For example, a victim may exaggerate in order to justify their conduct and to get revenge against the person who injured them. Political tendencies may obscure or reorder the truth. Refugees may exaggerate the persecution they may have suffered in order to qualify for refugee status or simply to justify their decision to flee. Ideally, the HRO will be able to obtain consistent information from individuals with different political backgrounds and life experiences. The HROs' use of reliable and uninvolved contacts, as well as their own good sense, are particularly helpful in this context.
27. While direct testimony from victims and eyewitnesses is the principal source of information for HROs, officers can also use second-hand testimony. When using the second-hand testimony of remote witnesses, however, field officers should remain aware that indirect information is more unreliable than direct testimony. The reliability of hearsay or second-hand information from several unrelated sources, though, will increase its probative value. Nonetheless, the officers should carefully consider hearsay or second-hand testimony before accepting it as fact.
28. Other forms of information can provide corroboration for allegations of human rights abuses. HROs can use physical and psychological symptoms observed during the interview and/or medical examination as indicators of reliability. If possible, HROs should seek the assistance of medical professionals for assessing medical and psychological symptoms of victims. See Chapter VIII - I "Interviewing special groups and individuals with particular characteristics". If such professionals are not immediately available, however, careful observation and description of symptoms may assist a medical professional in assessing the information at a later time. The HRO, as advised by a medical professional, should consider whether the information obtained during the interview and examination are consistent or inconsistent with the ill-treatment alleged. If the description of physical symptoms immediately after torture and any physical symptoms, including scars, that remain on the victim accord with the known pattern of symptoms for the types of torture alleged, then the HRO may consider the findings consistent with the allegations.
29. Other physical corroboration of allegations can occur during on-site visits, which provide an opportunity to verify witnesses' descriptions of buildings and rooms and possibly to take photographs -- particularly when there is a concern that the scene may be changed before the criminal justice professionals can arrive.
30. Real evidence can include clothes, personal effects, fingernails, under-nail scrapings, blood, and hair belonging to the victim. Weapons used to inflict the injuries and foreign objects (projectiles, projectile fragments, pellets, knives, and fibres) removed from the victim's body may also be used as evidence. Other examples of real evidence include chemical samples, fingerprints that identify the person responsible, photographs/film of the incident and/or scene, and photographs/sketches of torture marks on the victim's body.
31. In general, HROs should leave crime scenes untouched and should not attempt to substitute themselves for the police authorities. HROs should not gather or tamper with the sort of physical evidence that would be used in a criminal investigation, because the officers should try to avoid disrupting the criminal justice system. If, however, the HRO does encounter such evidence, it should be reported to authorities if they would be likely to pursue proper criminal justice investigations. If a HRO has no alternative and comes into possession of physical evidence, the officer should assure that the evidence is collected, handled, packaged, labeled, and stored in the proper manner to prevent contamination and loss. Each piece of real evidence should carry a separate statement detailing when and where it was taken/found. The statement should say who took/found the evidence, and it should be signed by that person. This procedure is important to preserve the continuity of evidence. (2) The handling of such evidence ordinarily requires professional forensic training.
32. Ultimately, HROs must rely on their common sense to assess the credibility of all information based on its consistency, the reliability of the testimonies, and the probity of the other material collected.
I. Evidence for criminal prosecutions
33. HROs should be aware of contexts in which the information they encounter may potentially be useful for criminal prosecutions -- either in international criminal tribunals for such places as the Former Yugoslavia, Rwanda, and any other place where the jurisdiction of the International Criminal Court may arise in the future -- or by national courts. (3) In general, the lawyers and investigators for such tribunals prefer to do their own investigations and have difficulty relying upon information collected by others. (4) Hence, if personnel from a relevant tribunal or court are available, HROs should promptly inform them of information which might fall within their mandate. Rule 70 of the Rules of Procedure and Evidence of the international criminal tribunals on the Former Yugoslavia and Rwanda permits the tribunal's prosecutor to receive confidential information and prohibits the prosecutor from revealing the identity of the informant or the information without previously obtaining the informant's permission. While no Rules of Procedure for the International Criminal Court exist yet, article 54 of its Statute authorizes the Prosecutor to agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents and take necessary measures to ensure the confidentiality of information, the protection of any person or evidence.
Most of the evidence collected for such tribunals comes from interviewing witnesses, visits to crime scenes, collection of physical evidence, and searches for documents. Evidence for criminal prosecutions usually needs to be more carefully handled than information obtained for human rights reports. Physical evidence must not only be preserved but the chain of custody must be carefully recorded, so that the evidence can later be verified. As indicated above, HROs should avoid disrupting criminal justice investigations and should generally avoid gathering physical evidence. Such issues raise significant policy decisions which can only be determined by the leadership of the human rights operation and not by individual HROs. Such policy decisions may wish to distinguish between the needs of (1) national or local criminal justice procedures, (2) reporting by any truth and justice commission, and (3) investigation for any relevant international criminal tribunal. See Chapter XVIII - G "More long-term follow-up; truth commissions and tribunals".
34. Similarly, the leadership of the human rights operation may decide that HROs should be particularly careful in interviewing witnesses who later may be required to testify in national and/or international criminal proceedings. The records of such interviews may be produced in the trial and thus must be very carefully prepared. If a witness has evidence which should be adduced in a criminal proceeding, the human rights operation may wish to defer interviewing the witness so as to avoid influencing the testimony and should inform prosecutors of potential witnesses or may wish to work closely with the officials who are responsible for investigating the criminal offence.
In all cases, in order to decide a policy on these matters the leadership of the human rights operation will need to consult with relevant staff of the tribunals, and any policy decided will have to be consistent with applicable rules of procedure.
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1. Diane Orentlicher, Bearing Witness: The Art and Science of Human Rights Fact-Finding, 3 Harvard Human Rights Journal 83, 118-19 (1990).
2. Kathryn English and Adam Stapleton, The Human Rights Handbook: A Practical Guide to Monitoring Human Rights 158 (1995).
3. The UN Security Council established the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 and the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda. Security Council resolutions 827 of 25 May 1993 and 955 of 8 November 1994 (see Chapter ....).
4. Graham T. Blewitt, The relationship between NGOs and the International Criminal Tribunals (1996).