Time for a Change?: The Traditional Human Right NGO Fact
Finding Methodology in relation to National and International
Prosecutions of Gross Human Right Violations
Eric Meldrum
31st August 2009
Submitted in partial fulfilment of the MA degree in Development
and Emergency Practice, Oxford Brookes University
1 ABSTRACT
The purpose of this dissertation is to offer a contribution to the practical work of international justice. The specific focus concerns the investigative methods used by human right Non‐
Governmental Organisations (NGOs), and asks whether these are still appropriate given the emergence of both national and international justice mechanisms to prosecute those suspected of gross human right abuses. The effect the NGO methodology has had upon subsequent criminal investigations and prosecutions at the national and international levels are analysed. This subject has not been addressed before and is a new area of study. It is hoped that the findings may be used to stimulate debate or inform recommendations for improved practices. Given the absence of critical literature on both the investigative methods employed by NGOs and the relationship that exists between these organisations and the judicial mechanisms established to investigate and prosecute suspected perpetrators of severe human right abuses, semi‐structured interviews were chosen as the research method. A cross cultural study of investigators methods was carried out in the countries of the former Yugoslavia and Uganda. The main area of study concerns the wars in the former Yugoslavia as this marked the emergence of the international bodies created to deal with such abuses, with the International Criminal Tribunal for the former Yugoslavia (ICTY). There are also established National War Crimes Courts in each of the countries involved. There is therefore a large amount of experience amongst the NGOs and prosecutors of working together and the practices each use. Research was also conducted in Uganda in order to test the validity of any findings. Interviews were conducted in person with senior staff of national NGOs in countries of the former Yugoslavia and Uganda, international NGOs in addition prosecutorial staff of the ICTY, the National War Crimes Courts of Serbia, Bosnia and Herzegovina and the International Criminal Court (ICC). The study reveals some previously unforeseen problems with the traditional methodological approach used by human right NGOs. The practicalities of working within the same field as the criminal justice mechanisms have not been addressed within the human rights movement, and there is a need for organisations to create policies to deal with this. It concludes that should an NGO choose to support an institution such as the ICC in an investigation, there is a need to adopt new investigatory practices and modify others depending upon the level of that support. 2 CONTENTS
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Abstract..........................................................................................................................2
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Contents.........................................................................................................................3
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List of Acronyms............................................................................................................4
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Preface and Acknowledgements....................................................................................5
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Chapter 1: Introduction..................................................................................................6
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Chapter 2: Research Methods........................................................................................9
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Chapter 3: Literature Review.......................................................................................13
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Chapter 4: Background................................................................................................19
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Chapter 5: Research Question 1...................................................................................24
“What Fact Finding Methods have Human Right NGOs employed
with Regards to Serious Human Right Violations in Conflicts subject
to National and International Criminal Investigations?”
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Chapter 6: Research Question 2...................................................................................29
“What Effect have Human Right NGOs Fact Finding Investigations
had on National and International Criminal Human Right Prosecutions?”
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Chapter 7: Research Question 3...................................................................................36
“What are the Limitations to Human Right NGOs Changing their
Fact Finding Methodology?”
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Chapter 8: Discussion...................................................................................................39
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Chapter 9: Conclusions................................................................................................47
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Bibliography.................................................................................................................51
3 LIST OF ACRONYMS
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AI – Amnesty International ‐
CICC – Coalition for the International Criminal Court ‐
FHRI – Foundation for Human Rights Initiative ‐
HLC – Humanitarian Law Centre ‐
HRW – Human Rights Watch ‐
ICC – International Criminal Court ‐
ICTR – International Criminal Tribunal for Rwanda ‐
ICTY – International Criminal Tribunal for the Former Yugoslavia ‐
IDP – Internally Displaced Persons ‐
IHL – International Humanitarian Law ‐
LRA – Lords Resistance Army ‐
NGO – Non‐Governmental Organisation ‐
NRA – National Resistance Army ‐
OTP – Office of the Prosecutor ‐
RDC – Research and Development Centre ‐
RLP – Refugee Law Project ‐
UN – United Nations ‐
UNLA – Uganda National Liberation Army ‐
UNICRI – United Nations Interregional Crime and Justice Research Institute ‐
UN OHCHR – United Nations Office of the High Commissioner 4 PREFACE AND ACKNOWLEDGEMENTS
The choice to research this topic was influenced by my former career as a detective with Thames Valley Police. Having conducted criminal investigations into serious offences and been involved in many court trials, I was interested in both the emergence of the International Justice Mechanisms and of how Human Right NGOs conduct investigations. This research allowed me to gain knowledge in both fields. Prior experience of investigative techniques and court procedures was beneficial in understanding the procedures used by NGOs and prosecutors. My thanks go to Richard Carver, senior lecturer at Oxford Brookes University for his advice, support and encouragement throughout the period the research was undertaken. Also, to the staff members from the following NGOs who kindly gave up valuable time for each interview; Documenta (Croatia), Research and Development Centre (Bosnia & Herzegovina), Humanitarian Law Centre (Serbia), The Helsinki Committee (Serbia), Refugee Law project (Uganda), Foundation for Human Rights Initiative (Uganda), Amnesty International (UK). Likewise my thanks go to senior staff from the Investigations Unit and the Prosecutor’s office of the ICTY in The Hague and the National War Crimes Court of Serbia for their time and help with my interviews. Additionally I would like to thank the staff members at the ICC in The Hague and at the national War Crimes Court of Bosnia & Herzegovina for their e‐mail responses to my questions. Finally I would like to thank Francesca Griffin for proof reading the document and her support during the last three months. The names of the interviewees have been withheld in the dissertation and any further use or publication of the material from these interviews should first be agreed with these persons. 5 CHAPTER 1
INTRODUCTION
Often it is human right non‐governmental organisations (NGOs) that are first on the scene following large scale violations of human rights and humanitarian law. Traditionally the role assumed by NGOs has been to conduct fact gathering exercises and to document their findings. By drawing attention to the situation pressure is often brought to bear upon the offending party which then helps stop ongoing violations. However there are two factors that raise questions of this methodology. The first is the rise in the number of national courts prosecuting these gross violations of human rights. The second is that with the establishment of international justice mechanisms such as the ad‐hoc International Criminal tribunals of Yugoslavia (ICTY) and Rwanda (ICTR) and the International Criminal Court (ICC) there is now a possibility that criminal investigations and prosecutions before an international tribunal may follow with regards to those atrocities being documented. Therefore the actions of NGO investigators whilst conducting their investigations can have a major impact upon any future criminal proceedings. The establishment of the ICC means that crimes committed after 01st July 2002 that fall under the Rome Statute of the International Criminal Court’s definition of crimes against humanity, war crimes and genocide can become subject to an ICC investigation if a prosecution at a national level is not possible. These investigations will commence after the Office of the Prosecutor (OTP) has received a referral detailing the violations and will therefore necessarily occur sometime after the crimes have been committed. In addition to often being first on the scene following reported mass violations, other NGOs will already have been doing work in the area. Therefore many human rights NGOs will often be in possession of information that later proves vital to a criminal case and as such are in an ideal position to assist the national or ICC prosecutor. They often have established relations of trust with the local communities and other civil society groups, and have direct contact with both victims and witnesses. They can provide a broad picture of the context in which the violations are taking place and present a pattern of events. 6 NGOs may be in a position to document crimes soon after they have been committed, before people disperse and physical evidence is lost. Indeed, they can be the main source of information which initially informs the ICC of situations where grave crimes are being committed. In many situations the state may be unable or unwilling to cooperate with the ICC, making NGO assistance all the more important. However, there are significant limitations faced by human rights NGOs. There may be different policies or mandates between NGOs, national courts and international courts. NGOs may have concerns regarding their independence as well as the protection of confidential sources and thus be unwilling to pass on specific information or to testify before the court as either an expert or independent witness. Historically much of the work of these organisations was directed towards abuses committed by the police or prosecutors of a country and there is therefore a tradition of hostility between them, which may hinder collaboration. Most NGOs do not employ trained criminal investigators which can affect the gathering and preserving of evidence. For example, obtaining more than one statement from a witness may create difficulties for that witness if he/she testifies before a tribunal and the untrained collection of physical and forensic evidence may limit its value before the court and thereby harm a prosecution or defence case. Moreover, such evidence may be lost completely if appropriate actions are not taken in a timely manner. Therefore, the role of human rights NGOs with relation to national and ICC investigations is of fundamental importance. The research question is whether the traditional fact finding methodologies used by human right NGOs are still adequate in light of the rise of both national and international criminal prosecutions of gross human right violations and if not what modifications to existing practices could be made? To answer this, the following questions shall be addressed with a specific focus upon the conflicts within the former Yugoslavia in particular, and also the conflict in Northern Uganda; 1) What fact finding methods have human right NGOs employed with regards to serious human right violations in conflicts subject to national and international criminal investigation? 2) What effect have human right NGOs fact finding investigations had on national and international criminal human right prosecutions? 3) What are the limitations to human right NGOs changing their fact finding methodology? 7 The following chapter discusses the research methods employed whilst chapter 3 assesses the current literature regarding fact finding methodologies of human rights NGOs and the practices of the criminal prosecutors. Chapter 4 details the background to each conflict and the establishment of the justice mechanisms to deal with the gross human right violations within each country. Chapters 5 to 7 address the findings of the research with 5 to 6 structured according to three main issues confronting human right NGOs in relation to criminal investigations and prosecutions. These are; 1) How human right NGOs interact with witnesses, with specific regards to statement taking and with regards to the prosecutor. 2) How human right NGOs deal with physical evidence. 3) How human right NGOs deal with matters of confidentiality, with particular regards to sensitive information and the issue of NGO staff providing evidence as witnesses in court. Sensitive material is taken to include personal details of victims, witnesses and sources. The remaining chapters are dedicated to a discussion of the findings followed by the conclusion with recommendations for further research. 8 CHAPTER 2
RESEARCH METHODS
To answer the research question the following aims and objectives were set. AIM OF THE RESEARCH
The overall purpose of the research is to analyse the traditional fact finding methodology used by human right NGOs and its significance with relation to the increasing occurrence of criminal prosecutions following severe violations of human rights. The relationship between human right NGOs, and both national and international criminal prosecutors were considered with the aim of making recommendations for improved investigatory practices if appropriate. OBJECTIVES OF THE RESEARCH
1) Ascertain the traditional fact finding methodologies employed by human rights NGOs through existing current literature. 2) Ascertain how these methodologies are used in practice by human right NGOs via semi‐ structured interviews with NGO investigators. 3) Ascertain what effect these practices have had on criminal prosecutions at the national level via semi‐structured interviews with national criminal prosecutors of gross human right violations. 4) Ascertain what effect these practices have had on criminal prosecutions at the international level via semi‐structured interviews with international criminal investigators and prosecutors of gross human right violations. 5) Ascertain limitations of human rights NGOs to modify their fact finding practices. 6) Suggest practical recommendations for future human rights investigations if deemed necessary. 9 METHODS AND STAGES IN THE RESEARCH
A cross‐cultural study was conducted of NGO investigators methods and their subsequent impact on national and international criminal prosecutions. The case studies concerned the conflicts in countries of the former Yugoslavia and Uganda which both have very different histories with regards to recent human rights violations. Both countries have been the subject of international human rights investigations, whilst there have been prosecutions at the international level and national level in countries of the former Yugoslavia. It is for this reason that the predominant focus of the research concerns the conflicts within the former Yugoslavia. Many prosecutions have now concluded and there has been sufficient time to reflect upon the practices employed by both human right NGO and criminal investigators, enabling those involved at the investigatory and prosecution stages to comment upon their experiences. By researching Northern Uganda also and in considering both national and international courts the validity of any findings should be tested, whilst capture any differences in the interaction between human right NGO investigators and each judicial court. The first stage of the research was to review the current literature concerning human rights investigation methodology. I also reviewed published reports and newspaper articles with regards to historic documentation of human rights violations by NGOs. Having done this, I constructed a semi‐structured interview plan with which to interview NGO investigators and both national and international human rights criminal investigators. The plan was guided by an inventory of issues that it was necessary to cover. Given the subject matter and the relatively little literature on the subject, it was felt likely that the interviewees may raise additional or complementary issues and this interview format allowed for that. These in turn could be taken up and discussed with later interviewees. Examples of situations concerning NGO fact finding methods in other conflicts were occasionally given by interviewees and these have been included as they contribute to the theme under discussion. All personal interviews were digitally recorded and later downloaded and transcribed. The majority of the interviews were conducted face to face, which involved travelling to Croatia, Bosnia‐Herzegovina, Serbia, The Hague and Uganda. Such a personal interaction allowed the interviewee depth of expression and to discuss points they felt relevant. Where it was not possible to arrange face to face interviews, these were conducted by phone or via the internet, although the majority were of the former. 10 Human right NGOs that were still conducting investigations within these countries were contacted and it was they who decided which member of staff it would be appropriate for me to interview. Again, with regards to the prosecutors’ offices, they again decided upon who it would be appropriate for me to interview and due to these restrictions I employed a convenience sample. A purposive sample may have led to differing results within the research and this is one of the limitations to the study. Other staff members from the organisations in which interviews were conducted may have given different answers to those of their colleagues. Also, staff from other human right NGOs that declined to be interviewed may again have given responses that vary from those obtained, due to differing organisational or personal experience. Therefore the answers provided by the interviewees cannot be taken as representative of the whole body of human right NGOs. The situations with regards to Uganda and the countries of the former Yugoslavia are very different also. The ICTY is an ad‐hoc tribunal established by the Security Council and a separate institution to the ICC. National prosecutions have taken place in the former Yugoslavia whereas a national war crimes court has only recently been established in Uganda and prosecutions are yet to take place. Whilst the ICTY have conducted trials against those indicted, the ICC has not with regards to Uganda as those indicted have yet to be arrested. However, both institutions are closely related in that they are international justice mechanisms and are very similar with regards to law, evidence and procedure. The crucial feature of the research is that both the international courts and the national courts of Uganda and the former Yugoslavia in particular have conducted extensive investigations with regards to the severe violations of human rights and in each instance have interacted with human right NGOs as part of those investigations. Any differences or similarities of NGO fact finding methods used and their effect on subsequent investigations and prosecutions were analysed to establish whether there is a pattern of cause and effect. Through these, the objectives of assessing the implications that human right NGOs fact finding methods have had with regards to criminal prosecutions were fulfilled. The interviews with the NGOs and the current literature on the NGO methodologies allowed me to determine what the difficulties are with being able to alter their methods. 11 FORM OF CONCLUSIONS
The intention of the study is to allow me to contribute new knowledge and discussion on the subject of human right investigations and to make practical recommendations if appropriate. 12 CHAPTER 3
LITERATURE REVIEW
Within this research area, there have been no books or papers published specifically considering the main issue of the relationship between Human Right NGO investigations and that of both national and international investigations. However there are publications concerning the different elements that comprise the object of study. These can be broken down into two categories. Firstly, writings upon best practice methodology for human rights activists involved in the fact finding and documentation of human rights violations and secondly, material concerning the legality and functioning of the ICC and the ad hoc tribunal of the ICTY as well as information on specific investigations and prosecutions. Whilst reviewing the existing literature for the first category, it is worth noting that there is no published common or agreed upon standards by which the movement as a whole must adhere to. The guidance written to help human rights NGO investigators is overwhelmingly written by NGOs themselves drawing on organisational experiences of fact finding in a variety of different situations. Rather than providing strict rules within an exhaustive manual that covers and can advise on every type of investigation, they are intended as a source of reference when and if required. Much of what has been written stems from an effort to create a more effective and professional approach. The “UKWELI” handbooks published by Amnesty International and CODESRIA (1) and that published by Forum‐Asia (2) are good examples in that they are intended as best practice guides based upon the experiences of human rights activists within Africa and Asia respectively. Whilst dealing with the other fundamental aspects of monitoring and documentation as well as fact finding, these handbooks show that the mandates of NGOs often differ from that of a national or international criminal investigation, which is directly concerned with obtaining evidence to support a prosecution. The main objectives for the NGO investigations can be listed as follows; 1.
2.
Adebowale, S. (2000) UKWELI Monitoring and Documenting Human Rights Violations in Africa, A handbook. Amnesty International and CODESRIA. Ravindran, D.J., Guzman, M. & Ignacio, B. (1994) Handbook on Fact‐Finding and Documentation of Human Rights Violations. Asian Forum for Human Rights and Development. 13 1) To provide immediate assistance to victims of human rights abuse and their families. 2) To seek redress for victims in terms of an apology, financial compensation, rehabilitation or criminal prosecution. 3) To change laws and policies of a country to ensure governments adhere to treaty obligations and that they are consistent with international standards. 4) To change the attitudes and behaviour of those in authority, such as judges, government and the military to respect human rights. 5) To raise public awareness nationally and internationally to stop further abuses. 6) To establish an historical record, in particular following a situation involving large scale violations (1) (2). Although the reasons for conducting investigations differ, there is an emphasis throughout the literature on some criteria deemed fundamental, that is, knowledge of international human rights standards and in particular the accuracy of information. The results of fact finding must be reliable if the human rights organisation is to be both credible and effective. Although there are often obstacles to achieving this in the form of lack of access to information or areas where violations have occurred, bias of those involved or a significant time lapse between the violation and the investigation, it is vital that any information gained is assessed and evaluated by what is already known and constantly reassessed when new information comes to light (3). To achieve this high level of accuracy requires many skills. A clear distinction must be made between facts and hearsay. There has to be a clear focus of the scope and parameters of the fact finding, but there must remain enough flexibility to pursue all avenues of investigation that may arise. Identification of missing pieces of evidence should be made at a preliminary stage and efforts directed at obtaining these. Comparisons with other similar cases and the cross checking of information with other sources in addition to the interviewing of victims and witnesses and the collection of additional evidence should enable a clear picture to develop (1). Although urgency may be an important consideration within certain circumstances, this should not be at the expense of accuracy. Fact finders must display objectivity and impartiality in these activities to ensure reliable unbiased findings (4). 1.
2.
3.
4.
Adebowale, S. (2000) UKWELI Monitoring and Documenting Human Rights Violations in Africa, A handbook. Amnesty International and CODESRIA. Ravindran, D.J., Guzman, M. & Ignacio, B. (1994) Handbook on Fact‐Finding and Documentation of Human Rights Violations. Asian Forum for Human Rights and Development. UN OHCHR (2006) Training Manual on Human Rights Monitoring. Office of the High Commissioner for Human Rights, United Nations. http://academic3.american.edu/‐mertus/HR%20fact‐finding.htm, MERTUS, J., Considerations for Human Rights Fact Finding by th
NGOs, accessed 28 May 2009. 14 The ethical aspect of conducting human rights investigations is highlighted throughout the literature. The security and welfare of victims, witnesses or other sources of information (also known as “contacts”) have to be prioritised at all times and this may determine whether certain information is disclosed or withheld. Within this, confidentiality is stressed and advice is given on basic precautionary measures to maintain this. This can prevent harm or further harm happening to those who have disclosed information and helps to bond relationships of trust that can be used as sources of intelligence in the future. Again this comprises guidance only and much is left to the discretion of the investigator and organisation within which they works to assess the risks and benefits of disclosing personal details to the public or a national or international enquiry. Nothing is mentioned with regards to cooperation with such institutions. In addition to these general guidelines, examples are highlighted with regards to specific violations. For example, the UKWELI companion books directly concern investigations of; 1) excessive use of force, 2) death in custody, 3) political killings, 4) torture and cruel, inhuman or degrading treatment, and prison conditions and 5) sexual violence. These are detailed and give guidance concerning various scenarios (1). Similarly the United Nations Office of the High Commissioner of Human Rights (UN OHCHR) has published a training manual for human rights monitoring intended for both UN and other human rights activists, in which best practice with regards to interviewing as well as fact finding in refugee camps, internally displaced persons (IDP) camps, and detention centres is detailed (3). In addition to this material, the large international organisations Amnesty International (AI) and Human Rights Watch (HRW) have published their research methodology on their respective web sites. HRW state that their “researchers work to an established, proven and consistent methodology based on information gathering from a broad range of sources” (5). This goes on to state that they will attend the locations where violations have occurred in order to conduct investigations, enabling the researcher “to identify and locate victims and witnesses to interview” (5). With regards to conducting interviews, the site states that “Every human rights violation or incident that HRW investigates, and every victim or witness a researcher interviews, is unique. Therefore there is no 1.
3.
5.
Adebowale, S. (2000) UKWELI Monitoring and Documenting Human Rights Violations in Africa, A handbook. Amnesty International and CODESRIA. UN OHCHR (2006) Training Manual on Human Rights Monitoring. Office of the High Commissioner for Human Rights, United Nations. th
http://www.hrw.org Our Research Methodology, accessed 30 July 2009. 15 uniform methodology that is universally used by the organization” (5), but goes on to say that the principles employed by researchers are consistent in terms of the need to uncover the truth, to corroborate accounts, to maintain the security and dignity of the witness and to remain impartial. HRW researchers will sometimes gather physical evidence themselves and examples are given of how this has been done historically within the organisation, i.e. through the use of forensic tools, cameras and satellite imagery in addition to the documenting of spent munitions. This section concludes “When documenting evidence of human rights abuses, researchers are trained to use any methods at their disposal and not to rely solely on interviews” (5). AI state that their research is fact based and that reports of human rights abuses are investigated thoroughly with researchers “cross checking and corroborating information from a wide variety of sources and contacts” (6). In common with HRW, information is scrutinized to ensure it is “factually accurate” and “politically impartial” (6). Overall, the literature advocates a thorough and professional investigation with all possible lines of enquiry exhausted and relevant evidence obtained despite the differing mandates and forms that fact finding can assume, which is in common with both national and international criminal investigations (7). The objectives, to uncover the facts concerning an allegation are the same and the best practice methods of achieving this are likewise the same (7). Whilst limited resources and the obstacles mentioned may hamper an investigation, a human rights activist employing the methods set out within the literature would be able to obtain evidence that could aid a criminal prosecution. Most literature concerning the ICC and the ad hoc criminal tribunals are concerned predominantly with the legality of the court structures and the procedural aspects. Acknowledgement of the role played by human right NGOs is limited to the information they can provide to the prosecutor during the preliminary examination of a situation. This is the first stage whereby the prosecutor, acting upon his own “proprio motu” authority rather than a referral, initiates an investigation based upon 5
6
7
th
http://www.hrw.org Our Research Methodology, accessed 30 July 2009. th
http://www.amnesty.org/en/who‐we‐are/faq Frequently Asked Questions, accessed 30 July 2009. United Nations Interregional Crime and Justice Research Institute (UNICRI) and the International Criminal Tribunal for the former Yugoslavia (ICTY), Nov 2008. ICTY Manual on Developed Practices. 16 information of crimes that are within the jurisdiction of the court in order to determine whether there is a reasonable basis to proceed with a formal investigation (8). In doing so, the prosecutor has to base the decision upon a wide variety of sources of information, of which NGOs are just one. This is detailed in article 15, paragraphs 1and 2 of the Rome statute and is the only occasion that NGOs are referred to within the statute, perhaps explaining the lack of attention paid to the potential that the work of human rights activists can have to the court (9). Official investigations authorised by the pre‐trials chamber are undertaken by the prosecutor’s office and in cooperation with state parties. All Information and evidence for the investigation is to be gathered solely with the assistance of states parties and no mention is made of cooperation with civil society groups or NGOs. Whilst academic literature has largely ignored this relationship, writing published by local organisations about the effects of an ICC investigation makes mention of local human rights NGOs but only in the context of their reactions to ICC decisions rather than any aspect of cooperation. For example, Tim Allen’s book concerning the ICC and Uganda speaks of the local NGOs being opposed to the issuance of ICC warrants for the leaders of the “Lords Resistance Army” (LRA), in the belief that these would disrupt ongoing peace negotiations (10). Reports published by NGOs themselves regarding the ICC are specific to the country being investigated and are incorporated as part of their monitoring activities, seeking to maintain neutrality and impartiality (11) (12). Recently however, as part of its legacy, the ICTY in collaboration with UNICRI published a manual of the court’s practices for use by future national and international courts in the prosecution of alleged war criminals (7). This document contains advice on what has worked as best practice at the tribunal from the initial pre‐investigation phase through to the enforcement of sentences and is based upon the experience of investigators and prosecutors at the tribunal. Throughout this manual rd
8. Schabas, W. A. (2007) An Introduction to the International Criminal Court 3 Ed. Cambridge University Press. rd
9. Steiner, H.J., Alston, P. & Goodman, R. (2008) International Human Rights in Context 3 Ed. Oxford University Press 10. Allen, T. (2006) Trial Justice, The International Criminal Court and the Lord’s Resistance Army. Zed books in association with International African Institute and David Philip. 11. http://mcc.org/un/uganda/NGO%20statement%20to%20CHR%20cr%20northern%20uganda.pdf, Joint written statement submitted by American Jewish World Service, Caritas Internationalis, Human Rights Watch, International Federation for Human Rights, International Rescue Committee, International Save the Children Alliance, Jesuit Refugee Service, nd
Mennonite Central Committee, Norwegian Refugee Council and World Vision International, for circulation at the 62 Session of Commission on Human Rights under Agenda item 14 (C). Consideration of the Human Rights Situation in th
Northern Uganda, accessed 08 June 2009. 12. http://www.peacewomen.org/resources/Uganda/WomenUgandaICC.html, Perspectives and Experiences of Women in th
Northern Uganda in the ICC, accessed 07 June 2009. 7. United Nations Interregional Crime and Justice Research Institute (UNICRI) and the International Criminal Tribunal for the former Yugoslavia (ICTY), Nov 2008. ICTY Manual on Developed Practices. 17 NGOs are mentioned fleetingly. At the information gathering stage of investigations, human right NGOs are referred to alongside humanitarian institutions and other agencies operating on the ground during or immediately after an armed conflict. It is recognised that these agencies are likely to have information they will want to pass on to investigators, but advise that this will require careful verification. To that end, agencies are encouraged to only record details of potential witnesses and not to take comprehensive statements from victims, but rather a general overview of their account. It is advised that the taking of full statements is a professional process that should be left to trained investigators. Good practice would be to issue guidelines regarding proper practices to such agencies (7). Regarding sensitive information that NGOs may hold, the ICTY provided assurances under Rule 70 of its Rules of Procedure and Evidence that such material will not be disclosed to the defence and will be restricted to intelligence purposes only. In order to use any such information as evidence requires prior authorisation from the provider of the information. The aim is to encourage NGOs and other agencies to share information that may prove useful to the prosecutor (7). As shown, the literature is largely divided according to two distinct entities. There are the national and international courts, and there are the NGOs. Despite sharing common values and objectives on occasion the relationship between the two has been largely neglected, a quite surprising fact given the prominence that human rights NGOs assumed under the umbrella organisation of the “Coalition for the International Criminal Court” (CICC) in the establishment of the ICC (13). This can perhaps be explained by the need to retain perceived neutrality by NGOs in order to continue with their day to day activities and by the relatively new phenomenon of the international tribunals and criminal court which have necessitated a focus on their legal and operational aspects. Therefore, this research will be looking at a new area of study. 7.
United Nations Interregional Crime and Justice Research Institute (UNICRI) and the International Criminal Tribunal for the former Yugoslavia (ICTY), Nov 2008. ICTY Manual on Developed Practices. 13. Struett, M.J. (2008) The Politics of Constructing the International Criminal Court: NGOs, Discourse and Agency. New York: Palgrave Macmillan. 18 CHAPTER 4
BACKGROUND
To answer the research question this study has focused upon the experience of prosecutors and NGO investigators concerned predominantly with the conflicts in the former Yugoslavia but also Northern Uganda. In order to put the findings in context, it is necessary to provide a brief resume of the conflicts themselves and the subsequent national and international measures taken to prosecute alleged war criminals. Conflict within the former Yugoslavia
The Federation of Yugoslavia emerged as a sovereign nation with the Treaty of Versailles in the aftermath of World War 1 although the initial title of the Kingdom of Serbs, Croats and Slovenes gives an indication of the mix of nations that it comprised. The area had previously been separated between the Ottoman and Austrian‐Hungarian empires, leaving the region divided between the religious beliefs of Orthodox Christianity, Catholicism and Islam. During World War 2 the country was divided in its support for the Allies and the Axis powers, with Serbs supporting the former and Croats the latter. This lead to civil war during which both sides suffered heavy casualties, but in particular the Serbs with almost half a million killed by Croats, many in concentration camps. At the end of the war the communist leader Josip Broz Tito emerged as leader and proceeded to unite Yugoslavia once again. Peace reigned despite occasional nationalist uprisings until the end of the cold war and the fall of communism (14). The leaders of the republics of Croatia and Slovenia now argued for more sovereign power in order to join the European Community (EC), whereas the leaders of Serbia saw that such a as destructive to the Federation of Yugoslavia which they largely controlled at this time. With this impasse, elections were held in which presidents espousing nationalist rhetoric emerged victorious (particularly Franjo Tudjman in Croatia and Slobodan Milosevic in Serbia), reigniting old grievances. Declarations of independence were then made by Slovenia, Croatia and Bosnia‐Herzegovina during 1991 and 1992, each of which led to war with Serbia. The war with Slovenia was over after 7 days with few casualties, but with sizeable Serb populations in both Croatia and Bosnia‐Herzegovina, the Serb leadership was not prepared to give up territory in these lands (14). What followed were 14. Finlan, A. (2003) Essential Histories: The Collapse of Yugoslavia 1991 – 1999. Osprey Publishing Ltd. 19 brutal conflicts split along ethnic and religious lines of Croat, Serb and Muslim in Croatia and Bosnia‐
Herzegovina, during which crimes of ethnic cleansing, mass murder, torture, rape and destruction of religious, cultural and private property were committed in violation of international humanitarian law (IHL) by each faction (15). In 1993, the UN Security Council, having considered the conflicts a threat to international peace and security and in answer to the emerging evidence of these atrocities, established the International Criminal Tribunal for the former Yugoslavia (ICTY) with the purpose of prosecuting those most responsible for the violations to IHL. It was thought that bringing offenders to justice would deter further offences being committed and so contribute to the restoration and maintenance of peace in the former Yugoslavia (7). This was the first time in history that the global community had acted to establish a judicial body capable of administering international criminal justice (7). During its existence the ICTY has investigated thousands of criminal allegations, indicted a total of 161 persons and concluded proceedings in 120 cases. As the wars came to an end in 1995 and the rule of law was re‐established, national courts commenced the prosecution of individuals believed responsible for war crimes and crimes against humanity, albeit at a lower level of responsibility, within each country. Despite being located in The Hague, the ICTY was granted concurrent jurisdiction with the national courts whilst retaining primacy over the domestic courts allowing it to wrest jurisdiction of a particular case should the international prosecutor see fit. Throughout the conflict, human right NGOs based in Croatia, Bosnia‐Herzegovina and Serbia continued to investigate allegations of war crimes. During 1998 the region of Kosovo declared independence which led to a further war with Serbia for similar reasons to the preceding conflicts. Violations of IHL were widespread and have also been subject to investigation and prosecution by the ICTY. This war concluded following military action by the North Atlantic Treaty Organisation (NATO) in 1999. rd
15. Glenny, M. (1996) The Fall of Yugoslavia (3 Ed). Penguin Books. 7. United Nations Interregional Crime and Justice Research Institute (UNICRI) and the International Criminal Tribunal for the former Yugoslavia (ICTY), Nov 2008. ICTY Manual on Developed Practices. 20 The ICTY is due to finish its proceedings in 2009 and unless those war leaders still wanted by the tribunal are arrested, all further prosecutions will take place within the countries of the former Yugoslavia, where the alleged offences occurred. Conflict in Northern Uganda
Like the former Yugoslavia, Uganda has historically been an ethnically diverse nation consisting of different tribes occupying specific land areas. This was reflected in a politicized divide between the north, north‐west, south and south‐west (10). From the late 19th century Uganda was ruled under colonial administration by Britain and endured a relatively peaceful existence until independence was granted in 1962 (10). From this time until 1986 when the current President, Yoweri Museveni took power, Uganda was ruled by various dictatorships who sought to consolidate their power by favouring certain tribes with governmental and army positions. This period was characterised by massive human rights abuses against tribes seen as unsupportive of the ruling regime (16). Museveni came to power having led a guerrilla movement, the National Resistance Army (NRA) in a successful war against President Milton Obote and the state army, the United National Liberation Army (UNLA). The defeated UNLA soldiers made up of predominantly the Acholi and Langi tribes returned home to the north whilst the NRA organised a government with Museveni as president. Distrusting the new President and fearing revenge attacks by the NRA, many former soldiers formed various rebel groups and mounted a guerrilla war from the north and in particular Acholiland (16). By 1990 the only significant armed unit still fighting government forces was the Lords Resistance Army (LRA) led by Joseph Kony. The Ugandan government’s response was to mount military offensives in Acholiland which resulted in reprisal attacks by the LRA against a civilian population seen as unsupportive to the LRA cause or government collaborators. Since this period the LRA are reported to have committed murder, mutilations, rape and torture in addition to the abduction of thousands of children forced either to serve as soldiers or sex slaves. The effect of this was to terrorise the local population, who abandoned the Acholi districts of Gulu, Kitgum and Pader and fled to local towns and nearby garrisons seeking protection. Large scale camps were created for these IDPs (Internally Displaced Persons) and by 2004 were reported to be sheltering 1.5 million people, almost 80% of the population of Acholiland (10). 10. Allen, T. (2006) Trial Justice, The International Criminal Court and the Lord’s Resistance Army. Zed books in association with International African Institute and DavidPhilip. 16. Finnstrom, S. (2008) Living with Bad Surroundings. Duke University Press. 21 Faced with this situation, President Museveni referred the situation concerning the LRA to the prosecutor of the newly created ICC in December 2003. This was to be the first big case for an institution that had only officially been in existence since 1st July 2002. The decision to establish the ICC was taken in July 1998 at a UN conference in Rome, with 120 member states voting to accept a proposed statute for its implementation. This became known as the Rome statute. This affirmed that those crimes deemed of the most serious concern to the international community should not go unpunished and that prosecutions must be ensured by taking measures at the national level and through enhanced international cooperation (10). These crimes were defined as genocide, war crimes and crimes against humanity, whilst a further crime of “aggression” is one that is to be defined at a later date. To become a reality though, the statute required that 60 states ratify the treaty which was achieved in April 2002 (17). States were then required to incorporate laws pertaining to these crimes and the authority of the ICC within their domestic legislation (17). The ICC, like the ICTY is based in The Hague. Although separate institutions, the success of the ad hoc tribunals of the ICTY and the ICTR were a key factor in persuading states to vote for the statute. It should also be noted that human right NGOs were instrumental in the creation of the ICC. Having formed an umbrella organisation called the Coalition for the ICC (CICC), the NGOs successfully lobbied governments and politicians and are one of the courts biggest supporters (8). The ICC operates under specific rules. In order to commence an investigation there must be a referral by either the security council, by a state that has signed the Rome statute, as in the situation with Uganda or the prosecutor may initiate an investigation based solely upon his own “proprio motu” powers (although all 3 would involve authorisation from a pre‐trial chambers committee prior to it becoming a full blown investigation). Under the principle of complementarity, the ICC would 10. Allen, T. (2006) Trial Justice, The International Criminal Court and the Lord’s Resistance Army. Zed books in association with International African Institute and David Philip. rd
17. Robertson, G. (2006) Crime Against Humanity (3 Ed). Penguin Books rd
8. Schabas, W. A. (2007) An Introduction to the International Criminal Court 3 Ed. Cambridge University Press. 22 only proceed with a case where the state responsible for prosecution was unwilling or unable to proceed. Uganda qualified in that their national criminal legislation was not in full accordance with the Rome statue’s requirements and therefore would be unable to prosecute certain atrocities. In addition, President Museveni holds considerable power over the national judiciary, which could have led to accusations of bias and the national court lacked the security measures necessary to protect victims and witnesses (18). The targets of ICC prosecutions would be the higher ranking officials bearing most responsibility for the crimes whilst national courts would be encouraged to prosecute lower ranking defendants. Also, the court only had powers to investigate alleged offences that occurred after the statute had entered into force, i.e. 01st July 2002 (8). The situation in Northern Uganda appeared to fit these criteria and in June 2004 the prosecutor announced that there was enough evidence to proceed with an investigation. More than 50 missions were conducted in Uganda by the ICC to assemble further evidence, following which the prosecutor announced that there was sufficient evidence of systematic and widespread attacks committed by the LRA against the civilian population since July 2002 (17). These attacks involved murder, abduction, rape and other crimes of sexual violence, torture, child conscription and forced displacement and clearly fell under the jurisdictional crimes of the ICC. The prosecutor therefore applied for and was granted arrest warrants against 5 LRA leaders: Joseph Kony, Vincent Otti, Dominic Ongwen, Okot Odhiabo and Raska Lukwiya (8). The issuance of the warrants was welcomed by some human right NGOs but not by others, who saw this as a disruption to possible peace talks within Uganda (10). To date, none of the arrest warrants have been executed. Recently however, national legislation has been amended to incorporate the crimes of genocide, war crimes and crimes against humanity. A national war crimes court has now been established in Uganda to conduct criminal proceedings against suspected perpetrators occupying a lower level of responsibility than those indicted by the ICC. 18. http://www.amicc.org/docs/Uganda%20Q&A.pdf (2006) Questions and Answers on the ICC Investigation in Northern Uganda, th
accessed 17 July 2009. rd
8
Schabas, W. A. (2007) An Introduction to the International Criminal Court 3 Ed. Cambridge University Press. rd
17. Robertson, G. (2006) Crimes Against Humanity (3 Ed). Penguin Books. 10. Allen, T. (2006) Trial Justice, The International Criminal Court and the Lord’s Resistance Army. Zed books in association with International African Institute and David Philip. 23 CHAPTER 5
RESEARCH QUESTION 1
WHAT FACT FINDING METHODS HAVE HUMAN RIGHT NGOs
EMPLOYED WITH REGARDS TO SERIOUS HUMAN RIGHT
VIOLATIONS IN CONFLICTS SUBJECT TO NATIONAL AND
INTERNATIONAL INVESTIGATIONS?
To answer this question interviews were conducted with senior staff of the international NGO Amnesty International in addition to national human right NGOs in the former Yugoslavia and Uganda. These were Documenta in Croatia, the Research and Development Centre (RDC) in Bosnia and Herzegovina, the Humanitarian Law Centre (HLC) in Serbia, the Helsinki Committee in Serbia, the Foundation for Human Rights Initiative (FHRI) and the Refugee Law Project (RLP), both in Uganda. These were conducted in person at the offices of the respective NGOs. INTERACTIONS WITH VICTIMS AND WITNESSES
Statements
It was found that the common practice for all the NGOs is to take full detailed statements from victims where possible, regardless of the type of incident. It is usual to ask questions that elucidate the facts of the incident and all interviewees indicated that they adhered to what was described as “the standard methodology used by human rights organisations worldwide” (19); “(We) ask questions to the fact, what exactly happened, when... We take a full detailed statement...” (19). “We try to write a literal word of witnesses, not interpreting the words of witnesses. We are very careful” (20). th
19. Interview with representative of Documenta, Zagreb, Croatia, 26 June 2009. st
20. Interview with representative of HLC, Belgrade, Serbia, and 01 July 2009. 24 Relevant aspects of the law with regards to the offence under investigation are covered within the statement. There is also a preference for having the statements signed as a true account. There was no difference in this between the national NGOs of each country and the international NGO, Amnesty International. All interviewees also claim to take statements from named witnesses where possible in the same professional manner as described above. However, there are differences in format for these between the national NGOs, as might be expected given there is no singular standard. Each national NGO has their own official format which accompanies a witness statement, including all points felt necessary to include. AI however has no such official format and it is left to the researcher as to what questions are asked and what details are included; “People use their own formats and clearly some basics like who it is, where it is and those sorts of things but in terms of the substance of the testimony no...” (21). With Relation to ICC
All the NGOs appeared willing to discuss with witnesses the possibility that a criminal case may result and ask for their permission to pass the information to the prosecutor’s office. The NGOs working in Serbia and Bosnia & Herzegovina bring this up regularly with witnesses whereas in Croatia the NGO will re‐contact the victim or witness and discuss this if the national or international prosecutor request their details; “One thing is to give statement to us, another is to decide to stand in a court of law or to actually give a base for prosecution and for investigation part of procedure and so this is something we have to check several times” (19). This reflects the type of working relationship between the national courts and the NGOs in each of the countries, which is closer within Serbia and Bosnia‐Herzegovina than Croatia. 21. Interview with representative of AI, London, United Kingdom, 13thJuly 2009. th
19. Interview with representative of Documenta, Zagreb, Croatia, 26 June 2009. 25 AI do not discuss with victims or witnesses the possibility of future criminal proceedings either, even if working in an area that the ICC or national prosecutor is conducting investigations or is likely to in the future. However, if requested they would go back to those involved and ask their permission to pass their details on to the prosecutor. Similarly, the Ugandan NGOs do not discuss the issue at the time of taking statements, but would be willing to change this practice if requested by the prosecutor’s office. PHYSICAL EVIDENCE
It is clear that the taking of or handling of physical evidence is rare within human right NGO work. This was common amongst all interviewees, who took the view that this does not form a usual part of their fact finding methodology. Despite the rarity of this practice, examples were given where physical or documentary evidence had been taken on occasion; Q – Do you ever receive material evidence, for example photographs or documents?. “Yes...we simply collect it. I wouldn’t say that well, some things might be given to us, prosecutor is aware of existence of them and they have not been used because it’s not related to the cases which have been already in the court, but it might happen”. Q – Where is the evidence kept that is given to you? “The things we have so far are not bloody clothes or evidence of that kind but might be drawings of facilities that people have been held and that is actually important because there are no photos of that particular facilities...It’s kept in a closed thing like this” [indicates a filing cabinet] (19). “The next following three weeks they (AI staff) were able to go to sites...collect fragments of munitions...and looking at the munitions evidence and so on where that was available and try to sort of build our case”. (When discussing the situation in Gaza) (21) On these occasions there was no formal procedure employed for the handling, labelling or storage of this physical material other than to keep everything together with the relevant paperwork. th
19. Interview with representative of Documenta, Zagreb, Croatia, 26 June 2009. 21 Interview with representative of AI, London, United Kingdom, 13thJuly 2009. 26 Those interviewed stated that their investigation was of a “visual” nature and that therefore it was common to take photographs of scenes or witnesses to reinforce their investigation. Whereas most of the NGOs use basic cameras, Documenta use additional technology; “We are photographing everything with GPS codes which can actually be built in visually at a further stage so it can be linked with particular locations” (19). Such a method proves useful in that it helps to authenticate the photographs. CONFIDENTIAL INFORMATION
Documents
There was no common agreement between the interviewees as to how they deal with the issues of the handing over of sensitive and confidential material to the prosecutor. The practice of national NGOs of the former Yugoslavia varied, with the HLC and RDC representatives stating that their organisation was happy to hand across all of their material as they had trust in the established legal procedure to ensure confidentiality, whereas Documenta would be reluctant to hand over original documents. The procedure employed by Documenta is to hand to the prosecutor a general resume of the incident with the personal details omitted. Again this appears to reflect the lack of trust and of a close working relationship between this NGO and the prosecutor. The Ugandan NGO FHRI were willing to hand over the material again if guaranteed to be accepted in confidence, whereas there is a reluctance to do so with AI.
Witnesses
There is no single viewpoint with regards to whether staff should attend court, whether in the capacity of either an expert or independent witness. This has been an uncommon occurrence amongst the experience of those interviewed. However, as with the matter of physical evidence, 19. Interview with representative of Documenta, Zagreb, Croatia, 26 June 2009. th
27 there are exceptions; “I remember that one of our staff members testified before the ICTY in XXXX case. She was testifying about what she saw when she was employed by the agency so there are examples where it happens” (20). Some members of staff from the NGOs of the former Yugoslavia have acted as expert witnesses and on occasion as independent witnesses, although it is based upon individual preference and there is not an organisational policy. The FHRI have not had this situation occur yet but displayed a general willingness to act as either expert or independent witnesses if required; “We have not considered that because we have not had a request to that effect but I would imagine that when the time comes yes, we would be very happy to do that because we have been there, we have seen, we have interviewed, we have written. So I think it would be an opportunity for us” (22). In contrast, AI have an organisational policy not to attend court in either capacity as it is not considered as part of their work. It is thought that doing so could lead to problems of disclosure of confidential sources and therefore increase the risk to sources and staff; “We want generally to avoid being called in to court as expert witnesses because obviously when you’re in a court you’re exposed to...are you going to disclose your sources and so we’ve got that...a little bit like a journalist in court, not wanting to disclose sources... We’ve basically taken the line that we’re not there to appear in court”. Q – “How about as independent witnesses?”. “Organisational policy is not to do it... we’re trying to do research in a sensitive area without actually putting staff or indeed sources at risk so again I guess the question would come in that if you’re appearing in court frequently you’re exposing a greater risk so why do it?” (21). st
20. Interview with representative of HLC, Belgrade, Serbia, 01 July 2009. st
22 Interview with representative of FHRI, Kampala, Uganda, 31 July 2009. 21. Interview with representative of AI, London, United Kingdom, 13thJuly 2009. 28 CHAPTER 6
RESEARCH QUESTION 2
WHAT EFFECT HAS HUMAN RIGHT NGO FACT FINDING
INVESTIGATIONS HAD ON NATIONAL AND INTERNATIONAL
CRIMINAL PROSECUTIONS?
To answer this question interviews were carried out with senior investigators and prosecutors of the ICTY, the Serbian War Crimes Court, the Bosnia & Herzegovina War Crimes Court and the ICC at The Hague. All were conducted in person and at the relevant offices of the prosecutor, other than the latter two which were conducted via e‐mail. INTERACTION WITH WITNESSES
All interviewees were generally positive concerning the contribution made by human right NGOs to criminal investigations and prosecutions at both the national and international level. The majority stressed that the most important role the NGOs filled was being able to supply information to the prosecutor about the situation in the country and guiding the prosecutor towards specific incidents that would fall within the jurisdiction of the court (23)(24)(25). This was particularly important at the beginning of an investigation at the international level, as the following extract of an interview with staff at the ICTY indicates; “At the beginning NGOs had all this information they had been compiling themselves, or they had become aware of or they were finding out as they were working on the ground. They were almost our eyes and ears in some ways. We came to this, the conflict...we didn’t particularly know what to investigate, things were happening all over the place all at once. We were trying to find out what was happening, what had happened and who was responsible so everybody that we met had much, much more knowledge than we did...They knew the players’, they knew the victim groups and that kind of stuff... we intended to get as much information from them all as possible...” (24). 23. E‐mail correspondence with representative of Prosecutors Office at the Bosnia & Herzegovina War Crimes Court, th
st
Sarajevo, Bosnia & Herzegovina, 30 June & 01 July 2009 & th
24. Interview with representatives of Prosecutors Office at the ICTY, The Hague, The Netherlands, 08 July 2009. rd
25. Interview with representatives of Prosecutors Office at the Serbian War Crimes Court, Belgrade, Serbia, 03 July 2009. 29 At the national level the prosecutors of the national war crime courts of Serbia and Bosnia‐
Herzegovina praised the ongoing work of the NGOs in informing the court of alleged violations and passing the details of victims and witnesses. In particular with regards to the other countries of the former Yugoslavia, to which the prosecutor does not have regular access, in order that investigators can contact them and initiate or further an investigation (23) (25). Statements
Much of this information is forwarded to the prosecutor in the form of signed witness statements. These are used to inform the prosecutor and have helped guide investigations at the national level without causing disclosure problems. However, the taking of full detailed statements hampered prosecutions at the international level, particularly at the beginning of the ICTY concerning the quality of the information contained within the statements(24) (26). The level of training of NGO staff in this regard was of genuine concern, particularly bringing into question their neutrality and how much their statements reflected the actual words of witnesses and how much was being interpreted or suggested by the statement taker. There was also the problem of hearsay, where the NGO statements were not making clear what the witness actually saw or heard as opposed to what they had been told or had overheard, which led to confusion within the investigation team; “The sort of problems we encountered, there was sort of the statement taking probably, not as detailed, not necessarily accurate, recounting in the third person, not clear whether the witness was talking from their own experience or something they’d heard, hearsay, that sort of stuff...The problem then comes when you do take a statement that’s different to one that has been made to an NGO, so you do get a prior inconsistent statement and that comes about due to methodology mainly...that can be a significant issue” (26). th
24. Interview with representatives of Prosecutors Office at the ICTY, The Hague, The Netherlands, 08 July 2009. 23. E‐mail correspondence with representative of Prosecutors Office at the Bosnia & Herzegovina War Crimes Court, nd
Sarajevo, Bosnia & Herzegovina, 02 July 2009 & rd
25. Interview with representatives of Prosecutors Office at the Serbian War Crimes Court, Belgrade, Serbia, 03 July 2009. th
26. Interview with former senior staff member of Investigations Unit at ICTY, Rwanda via phone, 16 August 2009. 30 In addition to the issue of quality was the problem of different NGOs obtaining statements from the same person; “we also wanted to avoid getting multiple statements because they were being used against us by the defence, because every time you take a statement you get a different version, you get inconsistencies and...Sometimes if they’re not recorded well, it just causes unnecessary problems” (24). It was found necessary for the prosecutor’s office to issue guidelines to the NGOs to counteract these problems, and to ensure that the information was passed on within a format that would support the efforts of the prosecutor’s office; “What we do need from you is an accurate overall view of what sort of stuff this witness can talk about you know, the tensions in the Omarska camp, the killings, whatever it was. Just indicate broadly to us what they were able to talk about and get good contact information for them... the more you have a clean field with the witnesses to some extent the better” (24). This action eradicated the harmful practices of the NGOs that were present during the initial stages of the ICTY and ensured that information was supplied to the prosecutor in a constructive format. Prosecutors Office
Again there was a generally positive response regarding the work of NGOs in informing victims and witnesses about the work of the court and in persuading them to cooperate with criminal proceedings, particularly from prosecutors of the national war crimes courts; “Anytime when they encourage the witness, the victim to approach the court and give evidence is really the crucial contribution to criminal proceedings, crucial contribution of NGOs. NGOs have been good at this” (25). This practice was only briefly acknowledged by the international prosecutor’s office which can perhaps be explained by the relative numbers of prosecutions within the national and international courts. th
24. Interview with representatives of Prosecutors Office at the ICTY, The Hague, The Netherlands, 08 July 2009. rd
25. Interview with representatives of Prosecutors Office at the Serbian War Crimes Court, Belgrade, Serbia, 03 July 2009. 31 However, problems have also been experienced in this area. There was confusion amongst some witnesses regarding whether staff were from the human right NGOs or the ICTY. The separate roles of the organisations had not always been explained by NGO staff, leading some witnesses to believe they had already made a statement to the prosecutor’s office, when the statement had in fact been made to an NGO. This again led to unnecessary delays as investigative teams had to work out who had already spoken to the witness (24). At both the national and international levels, the neutrality and objectivity of NGOs was questioned with regards to criminal proceedings; “...there have been situations in which NGOs have contacted people responsible for war crimes, perpetrators of war crimes and then in subsequent cases that appear before the court, these NGOs tended to protect the perpetrators just because they have established quite close contact with them regarding maybe some earlier case and therefore they can’t be so impartial as we can, because we treat them all, potential perpetrators objectively, impartially whereas NGOs cannot do that. They establish some human relationships and then in some other situations they just tend to be partial to tend to protect people” (25). “.. one of the other problems we encountered with some of the NGOs, particularly the women’s NGOs is they tended to view some of the female victims as their own personal property, so getting access to them was pretty difficult and then when you did they would seek to exercise some sort of control over the witness...” (26). PHYSICAL EVIDENCE
It is rare for the prosecutor’s office to receive any form of physical evidence from the NGOs, either at national or international levels although it does happen on occasion. The national prosecutors stated that they are willing to accept any such material that can be authenticated. There did not appear to have been any issues with the authentication or the methods employed by the national NGOs in the handling or storage of such material (23) (25). rd
25
Interview with representatives of Prosecutors Office at the Serbian War Crimes Court, Belgrade, Serbia, 03 July 2009. th
24. Interview with representatives of Prosecutors Office at the ICTY, The Hague, The Netherlands, 08 July 2009. 26
Interview with former senior staff member of Investigations Unit at ICTY, Rwanda via phone, 16 August 2009. 23 E‐mail correspondence with representative of Prosecutors Office at the Bosnia & Herzegovina War Crimes Court, th
Sarajevo, Bosnia & Herzegovina, 30 June & 01st July 2009. th
32 Similarly at the international level it is uncommon for the prosecutor’s office to receive physical evidence although it has happened. Whilst material such as photographs taken by NGO staff and interview tapes have been admitted as evidence without difficulty, objects such as clothing or weapons had not been handed over to prosecutors at the ICTY (24). Although no other examples were given relating to the ICTY, experiences were related of occasions when material objects were handed to the International Criminal Tribunal for Rwanda (ICTR); “There was a field mission from one of the other UN agencies and they came in one day with a pick‐up truck with just all in the back, machetes, sticks, clubs, a whole sort of pile of weapons and I can’t remember if these things were labelled. There was no sort of chain of custody. They were all intermingled in the back. They were of no forensic value” (24). “I heard of a similar case with the ICTR where an NGO was taken by an eye witness to the local offices of government and the NGO people seized all the records but didn’t have any kind of chain of custody and the trial chamber said no, no, no we’re not admitting that and that was a big problem” (24). Senior staff of the investigations unit at the ICTY recalled “From time to time there was (physical evidence handed over)...and then you had problems of authenticity. Was a chain of custody maintained, all those sorts of issues and collection or seizure details” (26). The NGO “Physicians for Human Rights” were used in exhumations during the first few years of the ICTY, but the prosecutor’s office took over this function as the procedures involved in obtaining and storing the forensic evidence were not of the same standard as that required by the court (24). th
24. Interview with representatives of Prosecutors Office at the ICTY, The Hague, The Netherlands, 08 July 2009. th
26 Interview with former senior staff member of Investigations Unit at ICTY, Rwanda via phone, 16 August 2009 33 CONFIDENTIALITY
Documentary Material
In relation to confidential material such as witness details, documents etc, all the prosecutors interviewed believed they had received all the information they required from NGOs and could not recall having any problems obtaining this. It has been uncommon to receive sensitive information from NGOs at either level with “rule 70” seldom being taken advantage of at the ICTY (23) (24) (25). The investigations unit of the ICTY however had a differing view of how this information was received; “When you were finding out information from NGOs you would go through a negotiation process about what they would give you and how they were going to use it and that’s an important thing if you’re going to accept information confidentially you’ve got to think about how it plays out because the court may want to know where you got the information” (26). Staff as Witnesses
Due to there having been no prosecutions in Uganda to date, this necessarily applies only to the ICTY and the courts within the former Yugoslavia. There has been a tendency for NGO staff to appear in the capacity of an expert witness rather than an independent witness although this has occurred at both levels on occasion. For example, in order to introduce the taped interviews and photographs mentioned at the ICTY, staff members attended court and gave evidence in closed session (24). Explaining the rarity to appear as independent witnesses, staff at the ICTY questioned the assumed role of many NGO workers; 23. E‐mail correspondence with representative of Prosecutors Office at the Bosnia & Herzegovina War Crimes Court, nd
Sarajevo, Bosnia & Herzegovina, 02 July 2009 & th
24. Interview with representatives of Prosecutors Office at the ICTY, The Hague, The Netherlands, 08 July 2009. rd
25. Interview with representatives of Prosecutors Office at the Serbian War Crimes Court, Belgrade, Serbia, 03 July 2009. 26. Interview with former senior staff member of Investigations Unit at ICTY, Rwanda via phone, 16 August 2009 th
34 “Some take the view they have to be neutral between the criminal justice system and the criminal. I’m not sure that’s quite the way to see it, you know, because they have to have access and need to operate on the ground, they have to be completely even handed between the killers and the peacemakers” (24). The experience of all staff in the prosecutors’ offices is that the decision to attend court as an independent witness is taken on an individual basis, whereas it is an organisational decision to attend as an expert witness. th
24. Interview with representatives of Prosecutors Office at the ICTY, The Hague, The Netherlands, 08 July 2009. 35 CHAPTER 7
RESEARCH QUESTION 3
WHAT ARE THE LIMITATIONS TO HUMAN RIGHT NGOs
MODIFYING THEIR FACT FINDING METHODOLOGY?
In addressing this question, published literature of human right NGOs regarding their fact finding methodologies were considered alongside responses of the NGO interviewees. The limitations to altering the current NGO methodology cut across all the main issues of interaction with witnesses, physical evidence and matters of confidentiality and are considered as such. MANDATE
The most obvious reason quoted by several NGOs is that they do not conduct criminal investigations and that their mandate is different (2) (19) (21) (22). Whilst supporting the justice mechanisms, the roles are seen as mutually exclusive. The national NGOs of the former Yugoslavia and Uganda are concerned with documenting the human rights violations during the war and creating an historical legacy, whilst AI are concerned with establishing and publishing the occurrence of human rights abuses in order to pressurise the offending state or party to stop committing them. In doing so the NGOs admit that they are not working to the same standard; “we’re trying to get the facts but they’re not facts that have to stand up in a court of law” (21). Therefore the type of information sought is different and of a more “visual” nature (22); “...you wouldn’t really want to bring much physical evidence away, in a sense it is much more a question of human evidence supported by photographs or whatever which may back ___________________________________________________________________________ 21
19.
22
2.
Interview with representative of AI, London, United Kingdom, 13thJuly 2009. th
Interview with representative of Documenta, Zagreb, Croatia, 26 June 2009. st
Interview with representative of FHRI, Kampala, Uganda, 31 July 2009. Ravindran, D.J., Guzman, M. & Ignacio, B. (1994) Handbook on Fact‐Finding and Documentation of Human Rights Violations. Asian Forum for Human Rights and Development. 36 you” (21). CONDITIONS OF WORK
NGO staff typically operate under severe conditions hampered in terms of movement and access to victims and witnesses (2). They often do not have much time with a witness and cannot obtain as much detail as they would like; “You’re cutting corners to a certain extent and therefore some of the care and some of the precision in putting things together may be limited in some circumstances” (21). There are unlikely to be facilities for the storage of material or a permanent base to work from. However, there are circumstances in which an NGO can operate relatively freely without the restrictions outlined above, as with the examples of the former Yugoslavia and Uganda. INDEPENDENCE
The issue of independence was an important factor to AI and was used to justify the policy of not passing on sensitive information or attending court as witnesses, which could jeopardise sources and hence affect the position of trust in which AI is held. This in turn could increase the future risk to staff working in areas of conflict (21). Being too closely associated to the prosecutor could lead to an appearance of a loss of impartiality on the side of the NGO also and affect their working practices (19) (20) (21) (27). This was a concern of all NGOs. Interestingly all interviewees perceived their own organisations as neutral and the prosecutor’s office as being biased against suspected perpetrators. 21 Interview with representative of AI, London, United Kingdom, 13thJuly 2009. 2. Ravindran, D.J., Guzman, M. & Ignacio, B. (1994) Handbook on Fact‐Finding and Documentation of Human Rights Violations. Asian Forum for Human Rights and Development. th
19. Interview with representative of Documenta, Zagreb, Croatia, 26 June 2009. st
20. Interview with representative of HLC, Belgrade, Serbia, and 01 July 2009. th
27. Interview with representative of RDC, Sarajevo, Bosnia & Hercegovina, 26 June 2009. 37 TRUST
AI stated a desire to maintain independence from the international justice mechanisms in particular which they appeared to regard as tainted due to the conduct of some investigations; “We’ve been breaking the information before they’re getting on to it, then they’re coming in to do a much more comprehensive in depth job but it’s also a slow job and one which became increasingly questioned, for example Sierra Leone, all that money for only seven prosecutions?. We very much support the international justice things but if you look at some of the hybrid things, for example Cambodia, for all the effort that has gone in there’s not a lot has come out so there’s certainly a need for us to keep going. Sure we can learn things from them but we can’t wait for those operations to get going....” (21) Similarly the interviewee at the RLP voiced concern that the timing and number of arrest warrants issued with regards to the LRA by the ICC, had served to exacerbate the conflict, and the lack of investigations directed towards alleged atrocities by government soldiers indicated bias (28). There appeared a clear lack of respect and trust towards the institution and this was used to justify why there was no need to consider altering their methods. A similar sentiment is espoused in a recent press release by the RLP amongst other local human rights organisations within Uganda with regards to the establishment of the national war crimes court. In this questions are raised concerning the costs involved and whether this money would be better spent in compensating or rehabilitating victims of the conflict (29). Despite the limitations outlined above, all interviewees acknowledged that they could improve on their techniques and several indicated that they would be willing to modify existing practices if requested by the prosecutor (19) (21) (22). 21 Interview with representative of AI, London, United Kingdom, 13thJuly 2009. th
28. Interview with representative of Refugee Law Project, Kampala, Uganda, 28 July 2009. 29. Prosecuting Crimes or Righting Wrongs: Where is Uganda heading to? (August 2009). Press release of Makerere University Faculty of Law, the RLP and Human Rights and peace Centre. th
19. Interview with representative of Documenta, Zagreb, Croatia, 26 June 2009. st
22 Interview with representative of FHRI, Kampala, Uganda, 31 July 2009. 38 CHAPTER 8
DISCUSSION
The wide scope and variety of work that human right NGOs undertake necessitates that the actual investigation of severe human right violations is just one aspect of their role, although it is perhaps the most important. Professional and effective investigations are crucial to establishing the facts of a situation. These in turn inform any advocacy programme which can affect the credibility of the organisation and its subsequent ability to be an effective promoter of human rights. Therefore the methodology employed by NGOs in establishing the facts is of fundamental importance. Researching the effect that NGO investigations have had on criminal investigations, at the national and international levels, has served to not only analyse their direct effects concerning prosecutions but has also provided a means to consider the effectiveness of some NGO practices in general in being able to establish the facts in any situation. There have been interesting findings throughout all the issues analysed. These main areas are considered in turn, during which the findings are analysed and consideration is given as to whether a change in that aspect is warranted and justified, given the limitations outlined in the previous chapter. INTERACTION WITH WITNESSES
The most fundamental aspect of this area was the taking of statements from both victims and witnesses. This was common to all the NGOs. All interviewees stated they retained a neutral stance, obtaining professional statements which took into account aspects of the law and hearsay, and represented a literal account of what the witness had seen or heard. This would accord with the best practice guidelines referred to within the literature review. Despite this apparent uniformity, each national NGO adopt formats unique to their organisation whereas the international NGOs HRW and AI do not employ any, leaving this to the discretion of the statement taker. The emergence of 39 judicial mechanisms within the field historically occupied by human right NGOs has put such uniformity, and the standards employed by NGOs, under scrutiny. It was clear that during initial investigations of the ICTY, there were problems associated with the statements being taken and forwarded by NGOs. Primarily the quality in terms of accuracy, clarity and neutrality were in doubt. It was questioned whether the NGO interviewer was relating a literal account from the witness, rather than adding what they thought should go into a statement, in addition to problems of hearsay within accounts. These are the very principles that all NGOs claim to adhere to. This issue of quality, combined with the confusion that was caused by different NGOs taking statements from the same witnesses, actually served to help in the defence of suspected perpetrators of war crimes at subsequent trials, as the witness appeared to be giving conflicting accounts which diminished their credibility before the court. To the senior staff at the ICTY investigators unit and the prosecutor’s office, there was a clear difference between the standards adopted by “professional police or criminal prosecutors” (24) and that of the NGOs. Despite these comments referring to the start of the ICTY, the manual on developed practices recently published caution that the taking of statements is a “professional process that is best left to...trained investigators” (7). This specifically relates to NGOs operating on the ground during and after a conflict and appears a reflection of the problems encountered. It is clear that human right NGOs are in possession of important information concerning severe human rights violations that the prosecutor would wish to acquire at both the national and international levels at the start and during criminal investigations. The method of passing this information across in an acceptable format that will aid rather than hinder investigations as shown, is therefore of importance. In answer to the problems encountered by the ICTY, guidelines were issued to NGOs requesting that they obtain a broad account of what a witness could say and to obtain relevant contact details. The practice of taking signed witness statements was discouraged. This basic information was also important to the national prosecutor offices within Serbia and Bosnia‐Herzegovina. This suggests that if an NGO is obtaining information with the intent of handing th
24. Interview with representatives of Prosecutors Office at the ICTY, The Hague, The Netherlands, 08 July 2009. 7. United Nations Interregional Crime and Justice Research Institute (UNICRI) and the International Criminal Tribunal for the former Yugoslavia (ICTY), Nov 2008. ICTY Manual on Developed Practices. 40 it over for use to a national or international prosecutor, it should assume this form. It is questionable whether the ICTY prosecutor would have requested NGOs not to take statements despite the question of their quality, as they prefer a “clean field” (24) to work with. However a fundamental issue for NGOs arises despite this. Whilst accepting that NGOs operate within a wholly different mandate to that of the prosecutor, both the human right researchers and criminal investigators are primarily concerned with establishing the veracity of accounts and in investigating the same situations. Therefore, the issue of why there is a difference in quality between the two is an important question. The investigative methods employed by Police in various countries including England and Wales emphasise there are best practice tools which enable an interviewer to obtain the most accurate information available from a witness and to test the veracity of an account whatever the circumstances (30) (31). If accepted, this negates the assertion by the international NGOs that as each situation faced and witness spoken to is unique, there is no applicable uniform interview methodology. It therefore follows that by employing differing methods, the standard of information obtained will differ. This in turn will make it harder to establish the facts concerning a given situation and could damage the credibility of an NGO. Whilst mandates and extreme stressful conditions may impinge on the ability to conduct a thorough investigation, the quality of statements in terms of establishing accurate accounts of witnesses is not subject to these restrictions and appears to be a fundamental area in which NGO investigations could improve. Most of the national NGOs in the former Yugoslavia discuss with victims and witnesses the possibility of future criminal proceedings arising, and requested authorisation to pass on their personal information to the prosecutor as a routine in their interaction with witnesses, whilst AI and the FHRI did not. This difference appears related to the levels of trust between the NGO and the particular th
24. Interview with representatives of Prosecutors Office at the ICTY, The Hague, The Netherlands, 08 July 2009. 30. http://www.police.govt.nz/resources/2005/investigative‐interviewing/index.html, Investigative Interviewing: the th
literature – New Zealand Police, accessed 27 August 2009. th
31. http://www.wikicrimeline.co.uk/index.php?title=PEACE_interviews, PEACE Interviews – Crimeline, accessed 27 August 2009. 41 prosecutor’s office. There are clearly strong links between those within Bosnia‐ Herzegovina and Serbia whilst they were not so strong within Croatia or Uganda. The prosecutors’ offices of Bosnia‐
Herzegovina and Serbia noted the important contribution made by the human right NGOs in their countries in encouraging witnesses to give evidence within criminal proceedings (23)(25). However it is worth noting that two national prosecutors who do not employ that practice (Documenta and FHRI) would do if requested, whereas AI would not. The national courts in the former Yugoslavia, in addition to the ICTY, have been in operation for a number of years and so it may be expected that closer working relationships and bonds of trust have developed there, whereas the national war crimes court has yet to establish itself in Uganda. The issue of trust in the judicial institutions created to investigate and prosecute suspected perpetrators of war crimes and crimes against humanity, is an important one, particularly when in relation to international NGOs such as AI and the RLP. Both interviewees from these organisations questioned the efficacy of the ICC in particular and doubted the neutrality of the institution. The support of international human right NGOs is crucial to the success of international justice and the mechanisms created to implement it. A lack of trust could hinder the flow of information to such institutions and disrupt potential for cooperation and is therefore an area of concern. The prosecutor’s office of the ICTY stated there had been confusion at the start of their investigations with NGO staff discussing the ICTY with witnesses, but not doing so in a manner in which the witness could understand, thereby creating confusion about the respective roles of the ICTY and the NGO. It is reasonable that the possibility of criminal proceedings is not always discussed with witnesses, particularly in a situation where there is unlikely to be any. However, in circumstances where there is a likelihood that such proceedings should arise, there would be obvious benefits in such a discussion, not only in the pursuit of justice for the wronged individual but also that it may be difficult to contact these persons again in order to broach the subject with them. In doing so the roles of the prosecutor and the NGO should be clearly explained in order that the witness can make a fully informed decision and is not misled into false expectations. 23. E‐mail correspondence with representative of Prosecutors Office at the Bosnia & Herzegovina War Crimes Court, nd
Sarajevo, Bosnia & Herzegovina, 02 July 2009 & rd
25 Interview with representatives of Prosecutors Office at the Serbian War Crimes Court, Belgrade, Serbia, 03 July 2009. 42 PHYSICAL EVIDENCE
The taking and receiving of physical evidence is rare within NGO investigative work. All NGO interviewees commented that their methodology involved mainly statements backed up by photographic evidence. That photographs are routinely taken demonstrates that NGOs are habitually involved with documentary evidence. When used as part of a report the methodology used in the handling and storage of the photographs is not an issue. However if they are taken with the intention of handing across to a criminal prosecutor at a future date, this is called into question. The examples given of the weapons and documents seized by NGOs in Rwanda and handed to the prosecutors office of the ICTR highlight the issues. The records taken from a local government office were not admissible simply because the NGO did not document the chain of custody i.e. who had possession of the records from the moment they were taken until they were handed across. Again the same issue arose with the weapons that were taken. In addition the weapons had been stored together with no record of where each weapon had come from and which incident it related to. Moreover, this ruined any potential in obtaining forensic evidence from the weapons. In both cases, potentially important evidence was lost. In the same manner a chain of custody has to be proven with regards to any photographs. Although it is not within the traditional role of NGOs to handle physical evidence, and therefore it should not be expected that the staff dealing with these objects will have knowledge of the correct rules of evidence and procedure, it is reasonable to assume that with the emergence of international justice mechanisms NGO staff will, in good faith, take possession of further material in future that could otherwise be lost before an investigator from the prosecutor’s office has a chance to seize it. If it is accepted by an NGO that their staff will assume this responsibility, the issue of training in basic procedures for handling physical evidence arises/becomes crucial. To authenticate a material object that can be of use to any prosecutor, and accepted as evidence requires that certain procedures are followed. As described in the Police training manual for England and Wales, a chain of custody has to be established as mentioned. To ensure this the item should be labelled detailing where it was taken from and by whom, with space for the name and signature of anyone subsequently receiving the object and the date it was received. Ideally a 43 suitably safe place for storage with controlled access should be available, and if considering future forensic analysis, items should be packaged in appropriate protective material separate from any other material seized (32). In most circumstances NGO staff will not come across such evidence as described above but the examples show that it has occurred. In addition there may be occasions when items are given by witnesses, such as maps drawn to indicate where abuses took place, as described by the interviewee from Documenta. There would appear no reason to change how NGOs deal with this issue if physical material is taken as part of their traditional mandate. However if the purpose is to aid a prosecution a different methodology is required. The limitations are that in most situations the conditions do not allow for the safe storage of material, in addition to not having the necessary equipment to package an item appropriately. In many cases it will not be possible to physically remove an object due to restrictions placed by authorities. In such circumstances, photographs or video recordings of the items would be the next best evidence available. However there will be occasions when it is possible to take or receive such material, and this is therefore an issue that may need to be addressed. It should be noted that to produce the material as an exhibit will require that a member of staff actually attends court to give evidence, although this is likely to be in closed session. The issues surrounding NGO staff attending court are discussed in the following section.
CONFIDENTIALITY
There appeared to be a general willingness to hand over sensitive material to the prosecutor if required, and this has not been a problem. All of the national NGO representatives interviewed other than Documenta, displayed a willingness to hand across all material, again perhaps reflecting 32. BLACKSTONES Student Police Officer handbook (2nd edition), edited by Robin Bryant, contributors ‐ Dr Bryn Caless, Kevin Lawton‐Barrett, Robert Underwood and Dr Dominic Wood. Published by Oxford University Press 2007. 44 the levels of trust employed between the NGOs and the prosecutors' office. In the majority of cases within the former Yugoslavia, this has been passed to the national prosecutors who have carried out a larger number of prosecutions than the ICTY. AI and Documenta have organisational policies not to hand over any sensitive material. There was no evidence that this position has yet been tested by a prosecutor or judge requesting access to the material. Although “rule 70” was designed to encourage NGOs, international bodies and states to supply information to the ICTY with a guarantee that this would be kept confidential, human right NGOs have not taken advantage of this. Without access to the information held by these NGOs it is not possible to discern whether they have held information that could have been of use to the prosecutor at the ICTY. Similarly the question of whether NGO staff should attend court in the capacity of either an expert or independent witness had varying responses between the national and international NGOs. The former displaying a willingness to attend court to give evidence as expert or independent witnesses if required, whilst the latter have a policy for staff not to attend court in any capacity. Whilst the decision of AI was an organisational one, it was left to the individual within the national NGOs to decide whether to adopt the role of either, perhaps reflecting a greater confidence and readiness to adopt a public stance in favour of the judicial mechanism. Although the ICC state that they will endeavour not to rely upon NGO staff as expert witnesses (33), they have been used as such within the ICTY and the national war crime courts of Serbia and Bosnia‐
Herzegovina. Standing as an expert witness has to be done in open court with the identity revealed of both the individual and the organisation they are part of. In this respect it is understandable that an international NGO in particular, with work and staff in many countries, would wish to appear neutral and not adopt that role. However with regards to appearing as an independent witness the circumstances are somewhat different. The rules of procedure at the ICTY provide for security and anonymity of witnesses and as the interviews with the representatives from the prosecutor’s office show, NGO staff have attended court in closed session when giving evidence as an independent witness. There are also strict rules governing sensitive material which does not allow the production of such material in an open court, other than in extenuating circumstances. Although a blanket confidentiality privilege for NGOs does not exist, and each item of sensitive information must be st
33. E‐mail correspondence with representative of Prosecutors Office at the ICC, The Hague, The Netherlands, 01 July 2009. 45 judged separately, the implications of handing over such information could be discussed first with the prosecutor’s office before a decision is made. If anonymity and protection of sources and sensitive documents can be ensured, this would counter the justifications given regarding the organisational policy of AI, that they may be forced to reveal sources, sensitive information and their identity in open court. Again the issue of trust arises between the NGO and the judicial mechanism. Such a policy directly impinges on the ability of investigators to deal with physical evidence, which would require a member of the NGO staff to attend court. 46 CHAPTER 9
CONCLUSIONS
The intention of this research was to ascertain whether the traditional fact finding methodology employed by human right NGOs is still adequate or if it is in need of modification following the establishment of the international justice mechanisms, such as the ICTY and the ICC. The issues most likely to confront NGOs with regards to this were considered. In the course of conducting the interviews and analysing the findings several points became clear. Despite the best practice literature and claims by NGOs to be adhering to commonly held standards, there are wide disparities in how investigations are carried out. Staff are trained within particular organisations to follow accepted protocol unique to it. The commonalities have been in the realm of taking statements from witnesses and photographs where appropriate to reinforce an account. But with these procedures there are differences both between and within organisations. It is to be expected therefore that the quality may vary within these traditional methods which leads to the following point. The comments by both senior staff of the investigations unit and prosecutor’s office at the ICTY and the manual on developed practices, indicate that the statements they were supplied with by NGOs lacked both accuracy and detail and hence were of an inappropriate standard to aid a criminal prosecution. It can be claimed in their defence that the NGOs are not trained to and do not conduct criminal investigations, but the issue raises a more important point for the everyday work of NGOs, and that is the quality of the information they elicit from witnesses. As the literature indicates, the focus is on obtaining the facts as accurately as possible, but if this is being done inadequately it will have a knock on effect upon any future actions the organisation takes and potentially may damage their credibility. Regardless of whether a statement is being taken with the express intention of being handed to the prosecutor or to be retained to form part of a report into alleged human right abuses, it appears this is an area in which standards could be improved. The issue of the quality of statement taking has importance beyond the more immediate scope of this research, which is concerned directly with the justice mechanisms, in that this is one of the core investigative methods employed by human right NGOs. As these statements are usually confidential, the opportunity to speak to investigators and prosecutors from the ICTY has opened a 47 critical perspective on the subject and is one that deserves more consideration than is possible within this dissertation. Another important issue is that of physical evidence. It is rare for NGOs to take or receive evidence and on the occasions it has been done historically it has been for the purposes of constructing a report. However if NGO staff are prepared to take possession of item with the intention of handing them to the prosecutor’s office to aid in an investigation, there are set standards so that the item can be accepted in court if required. As this has not been part of the traditional methodology used by NGOs there has been no training with regards to this. If it is not possible to take possession of an item, the habit of recording visual evidence as to the existence of the article could be adopted. However, if an organisation is willing for staff to take this action should it be felt necessary, this also appears to be an area in which training could improve on the current standards being practised. It is probable that NGO staff will come into possession of material deemed sensitive and witness themselves evidence of atrocities and it is important in how organisations will deal with these issues. Presently other than AI and Documenta, there appeared to be a complete willingness to hand over sensitive material with only AI having a policy not to attend court as witnesses in any capacity. These decisions seem related to the level of trust shown in the appropriate judicial institution to maintain confidentiality. As shown the reasons given by AI as to why staff will not give evidence do not always apply and in certain circumstances material can be handed across to the prosecutor and remain confidential. Similarly, staff can attend court as independent witnesses without being forced to disclose sources or other sensitive material. The fact that it is left to the individual as to whether to act as a witness indicates that the national human right NGOs have not considered this within their organisational policy, but have experienced no adverse effects. Traditionally there has been hostility between NGOs and national police and prosecutors, with each critical of the other. This undoubtedly makes collaboration more difficult between them. It is important for the NGOs to retain the capacity to monitor and criticise both the national and international justice institutions when appropriate. However, when those involved are working on the same side of international justice, there does appear to be opportunities for more constructive dialogue between all the parties, in order to foster better cooperation. 48 It would appear that human right NGOs have not intentionally altered their investigative methodology with the emergence of the judicial mechanisms. That human right NGOs were instrumental in the establishment of the ICC and to a lesser extent the ad‐hoc tribunals clearly shows that they value the institutions. But whilst these have been welcomed by NGOs, little thought appears to have been given to the practicalities involved and how they can affect their everyday work. In many situations national and international prosecutions will not take place and their work will be unaffected. But in a situation where there is or may be a likelihood of prosecutions at a later date, a policy regarding how that organisation is going to deal with the court is perhaps necessary. In doing so, decisions as to whether and to what extent the NGO will work with the prosecutor can be made. This would involve deciding what information to record and make available. If deciding to provide all information, this will invariably involve recording more detail than traditionally done. For example, the details of other potential witnesses at crime scenes, such as interpreters and drivers would be required. What format this information will take could then be decided upon, potentially involving consultation with the prosecutor’s office. Whether sensitive information will be passed across under some protective measure such as rule 70, whether staff should handle physical evidence and whether they should attend court to give evidence as to what they have seen are further issues that could be addressed at an early stage and avoid confusion and misunderstandings at a later date. This could then be followed by any appropriate training. The answer to the research question therefore depends upon the stance adopted by the NGO. If a policy is adopted that an organisation will not cooperate in any way with the prosecutor, the current methodology used will remain appropriate to their mandate. However, the issue of quality in terms of obtaining as much relevant accurate evidence as possible from a witness in statement taking would appear to be an area in which NGOs could improve their methodology in general. If organisational policy is that staff shall cooperate in any degree, the methodology should change to adopt at least some of the measures outlined above. The research has focused on a wide area and in doing so has served to give a general overview of the main issues confronting human right NGOs with the emergence of the various justice mechanisms. The findings and conclusions are based on the literature and interviews conducted, and a larger study with access to more respondents may reinforce some findings or refute them. These issues are not only of interest to human right NGOs but humanitarian agencies also, who are likely to be 49 witness to evidence of abuses and are therefore in a position to give evidence or be questioned about what they saw, who they spoke with and who they were with. The implications to humanitarian agencies therefore may warrant further research. The field of the investigation of alleged severe human rights abuses has historically been occupied by the human right NGOs and their methods have been largely unquestioned. With the international justice mechanisms operating in the same area, the dynamic between the two and their methods deserve further in depth study in the furtherance of international justice. 50 BIBLIOGRAPHY
1. Adebowale, S. (2000) UKWELI Monitoring and Documenting Human Rights Violations in Africa, A handbook. Amnesty International and CODESRIA. 2. Allen, T. (2006) Trial Justice, The International Criminal Court and the Lord’s Resistance Army. Zed books in association with International African Institute and DavidPhilip. 3. BLACKSTONES Student Police Officer handbook (2nd edition), edited by Robin Bryant, contributors ‐ Dr Bryn Caless, Kevin Lawton‐Barrett, Robert Underwood and Dr Dominic Wood. Published by Oxford University Press 2007. 4. E‐mail correspondence with representative of Prosecutors Office at the Bosnia & Herzegovina War Crimes Court, Sarajevo, Bosnia & Herzegovina, 30th June & 01st July 2009. 5. E‐mail correspondence with representative of Prosecutors Office at the ICC, The Hague, The Netherlands, 01st July 2009. 6. Finlan, A. (2003) Essential Histories: The Collapse of Yugoslavia 1991 – 1999. Osprey Publishing Ltd. 7. Finnstrom, S. (2008) Living with Bad Surroundings. Duke University Press 8. Glenny, M. (1996) The Fall of Yugoslavia (3rd Ed). Penguin Books. 9. http://academic3.american.edu/‐mertus/HR%20fact‐finding.htm, MERTUS, J., Considerations for Human Rights Fact Finding by NGOs, accessed 28th May 2009. 10. http://www.amicc.org/docs/Uganda%20Q&A.pdf (2006) Questions and Answers on the ICC Investigation in Northern Uganda, accessed 17th July 2009. 11. http://www.amnesty.org/en/who‐we‐are/faq Frequently Asked Questions, accessed 30th July 2009. 12. http://mcc.org/un/uganda/NGO%20statement%20to%20CHR%20cr%20northern%20uganda
.pdf, Joint written statement submitted by American Jewish World Service, Caritas Internationalis, Human Rights Watch, International Federation for Human Rights, International Rescue Committee, International Save the Children Alliance, Jesuit Refugee Service, Mennonite Central Committee, Norwegian Refugee Council and World Vision International, for circulation at the 62nd Session of Commission on Human Rights under Agenda item 14 (C). Consideration of the Human Rights Situation in Northern Uganda, accessed 08th June 2009. 13. http://www.helsinki.org.yu/, The Helsinki Committee for Human Rights in Serbia, accessed 02nd June 2009. 14. http://www.hrw.org Our Research Methodology, accessed 30th July 2009. 51 15. http://www.idc.org.ba/aboutus.html, Research and Development Centre, Sarajevo, accessed 15th June 2009. 16. http://www.peacewomen.org/resources/Uganda/WomenUgandaICC.html, Perspectives and Experiences of Women in Northern Uganda in the ICC, accessed 07th June 2009. 17. http://www.police.govt.nz/resources/2005/investigative‐interviewing/index.html Investigative Interviewing: the literature New Zealand Police, accessed 27th August 2009. 18. http://www.wikicrimeline.co.uk/index.php?title=PEACE_Interviews, PEACE Interviews, accessed 27th August 2009. 19. http://www.2.lse.ac.uk/library/collection/govtpub/humanrights/periodicals_news.espx, Periodicals and Newspapers – Human Rights Information in the Library, Governmental and Inter‐Governmental Publications, accessed 11th June 2009. 20. Interview with former senior staff member of Investigations Unit at ICTY, Rwanda via phone, 16th August 2009. 21. Interview with representative of AI, London, United Kingdom, 13thJuly 2009. 22. Interview with representative of Documenta, Zagreb, Croatia, 26th June 2009. 23. Interview with representative of FHRI, Kampala, Uganda, 31st July 2009. 24. Interview with representative of Helsinki Committee, Belgrade, Serbia, 01st July 2009. 25. Interview with representative of HLC, Belgrade, Serbia, and 01st July 2009. 26. Interview with representatives of Prosecutors Office at the ICTY, The Hague, The Netherlands, 08th July 2009. 27. Interview with representatives of Prosecutors Office at the Serbian War Crimes Court, Belgrade, Serbia, 03rd July 2009. 28. Interview with representative of RDC, Sarajevo, Bosnia & Hercegovina, 26th June 2009. 29. Interview with representative of Refugee Law Project, Kampala, Uganda, 28th July 2009. 30. Police and Criminal Evidence Act 1984, Codes of Practice A‐G (2005). 31. Prosecuting Crimes or Righting Wrongs: Where is Uganda heading to? (August 2009). Press release of Makerere University Faculty of Law, the RLP and Human Rights and peace Centre. 32. Ravindran, D.J., Guzman, M. & Ignacio, B. (1994) Handbook on Fact‐Finding and Documentation of Human Rights Violations. Asian Forum for Human Rights and Development. 33. Robertson, G. (2006) Crime Against Humanity (3rd Ed). Penguin Books. 34. Schabas, W. A. (2007) An Introduction to the International Criminal Court 3rd Ed. Cambridge University Press. 52 35. Steiner, H.J., Alston, P. & Goodman, R. (2008) International Human Rights in Context 3rd Ed. Oxford University Press 36. Struett, M.J. (2008) The Politics of Constructing the International Criminal Court: NGOs, Discourse and Agency. New York: Palgrave Macmillan. 37. UN OHCHR (2006) Training Manual on Human Rights Monitoring. Office of the High Commissioner for Human Rights, United Nations. 38. United Nations Interregional Crime and Justice Research Institute (UNICRI) and the International Criminal Tribunal for the former Yugoslavia (ICTY), Nov 2008. ICTY Manual on Developed Practices. 39. Wikipedia.org/wiki/list‐of‐human‐right‐articles‐by‐country, Human Right Articles by Country, accessed 04th June 2009. 53