Wednesday, July 30, 2014

Human rights fact finding: the overarching importance of impartiality

Conversations between Rob Grace (researcher and project coordinator for the Monitoring, Reporting, and Fact-finding project at Harvard University) and Salvatore Dimaggio about human rights fact finding

SD: It is important that the human rights facts are compiled according to clear, transparent and shared guidelines which ensure uniform standards, since they are used by international courts and institutions which have an impact on the lives of many people.
Today more than ever it is essential to aim for the highest possible impartiality in describing difficult situations. In this sense, the quality of the interviews has considerable weight on local populations: the living voice of the witnesses is a valuable source of direct information to be compiled, taking into account the specificities of the culture of the respondents.

RG: You are correct about the overarching importance of impartiality. The integrity of the investigation rests on the fact-finding team conducting its work in an impartial manner, meaning that the fact-finding team gathers information about all sides relevant to the context and evaluates the information gathered with objectivity. Impartiality is especially important because fact-finding practitioners regularly find themselves facing criticisms — sometimes very harsh critiques — of their work. It is, of course, a very sensitive and serious issue to publicly levy accusations about violations of international humanitarian law and human rights, so pushback against these accusations is common. One of the more typical critiques in this regard relates to impartiality. Governments, or other groups sympathetic to governments that have been accused by a fact-finding mission of violating international law, often charge that the mission was biased, either in its fact-finding methodology or in the manner that the team conducted its legal analysis. In this regard, an impartial methodology can be important to mitigating the extent to which the mission is vulnerable to criticism. 

Though, an impartial methodology is not a silver bullet. In my research conducted for the Program on Humanitarian Policy and Conflict Research at Harvard University, I have engaged with many fact-finding practitioners who have the perspective that many critiques of bias are politically motivated criticisms that lack merit. Essentially, there is a widespread perspective that being impartial does not necessarily shield one from the accusation of bias. And these issues of perception can very much affect how a fact-finding report is received and the overall impact of the mission.

One dilemma is that many of these mechanisms — fact-finding missions and commissions of inquiry, for example — come into being through a mandate that has been adopted by a government, or an inter-governmental body. One of course does not expect governments to be impartial. Rather, one expects governments to pursue their own interests. So fact-finding practitioners often find themselves in the position of having to convince certain members of the public that the biases of the mandating body need not necessarily translate into biases during the implementation of the mission.

SD: We are sorry that the NGOs have not found shared guidelines because, on the contrary, there are areas in which the NGOs themselves have achieved widely acclaimed and productive consensus. There have been specific emblematic cases in which rules of determination have been used, which can be taken as examples to reflect on the development of guidelines that are the reference for the future, such as:
Conflict Analysis Resource Center/University London study on Amnesty International and Human Rights Watch (Colombia, 1988-2004), United Nations Office of the High Commissioner for Human Rights Mapping Exercise on the Democratic Republic of Congo (1993-2003), the International Crisis Group (Kosovo, 1999), the Independent International Fact-Finding Mission on the Conflict in Georgia (Georgia, 2008).

RG: In relation to guidelines, through my research into the experiences and views of practitioners, I have discerned two overarching contrasting trends. On the one hand, human rights fact-finding practitioners, as well as others, have expressed a great deal of concern about the methodologies that certain missions have employed. There is a high level of vexation that practitioners have articulated that the legal analysis and witness protection measures, for example, of some past missions have not met expectations. On the other hand, practitioners have expressed concern about the restrictions that could come with instituting professional standards. One reason is that each context is sui generis, and it is difficult to devise guidelines that could be widely applicable across different contexts. Practitioners are caught in a paradox of desiring flexibility for themselves while also wanting some way to prevent unprofessional behavior. Similar challenges have been discussed in the humanitarian sector around the creation of Sphere Standards, for example. This tension between the competing desires for flexibility and restriction appears to be a common thread among professional sectors involved in responses to complex emergencies. The core challenge is how this domain can continue to professionalize itself in light of this normative obstacle.

SD: Unfortunately, the status of human rights violations is particularly dramatic with regards to childhood.
Over the past decade warfare has killed 2 million children, orphaned more than 1 million, have left 4 or 5 million disabled and left 12 million homeless.
40 million children under the age of 15 suffer from abuse and neglect.
More than 300,000 children are exploited as soldiers in armed conflicts around the world.
There are about 246 million children worldwide who are forced to work.

RG: It is particularly dramatic indeed. Regarding the response from fact-finders, one of the more innovative developments of the past decade, in terms of initiating new types of investigative mechanisms, has been the Monitoring and Reporting Mechanism mandated by the United Nations Security Council. This mechanism has been significant for drawing attention to violations against children in a wide array of contexts on an ongoing basis. In a sense, this mechanism has arisen as a result of the fact that the domain of monitoring, reporting, and fact-finding exists in an ad hoc state. There is no one overarching investigative mechanism tasked with fact-finding activities. Rather, we see many different mandating bodies creating a wide array of different types of investigative mechanisms. This creates a real challenge in terms of sharing best practices and lessons learned. However, one benefit of this state of affairs is that unique mechanism types can arise to fill certain voids or to highlight particular issues of concern. This is what has occurred with violations against children in the form of the Monitoring and Reporting Mechanism.