Abstract
Whereas the characteristics of human rights fact-finding largely vary depending on the typology and scope of the entity that carries it out, consensus seems to be developing that a common set of challenges to human rights fact-finding exists. This is especially so when carried out under United Nations auspices. For example, it has long been acknowledged that the very nature of the institution, sitting as it does at the crossroads of international politics, as well as the seemingly irresolvable tension between calls for human rights protection on the one hand, and State sovereignty on the other, present some structural challenges to human rights fact-finding. Furthermore, issues of coordination between the United Nations and other institutions (such as international governmental and non-governmental organisations, or international tribunals), as well as what some have called a ‘lack of institutional memory’ arguably often feature as regular traits among fact-finding mechanisms. In recent years, a further set of challenges has been added to the mix by additional requirements, featuring increasingly often in mandates, that instruct fact-finding mechanisms to make further determinations of facts (concerning, e.g. , the identity of those most responsible for the violations being documented, or the existence of an armed conflict) and even consider questions of law ( e.g. the qualification of the violations as crimes under international law). Building on an expanding body of scholarship on the subject, as well as the author’s own experience with fact-finding efforts sitting at the intersection between traditional international human rights law and international criminal justice, this article argues: (i) that human rights fact-finding has evolved in three waves; (ii) that the third wave of human rights fact-finding is characterised by an “accountability turn”; and that (iii) this turn has brought about an additional set of challenges to the already thin-stretched capacity of UN human rights inquiries. By virtue of the arguments advanced in this article, the author posits that updating and solidifying the human rights fact-finding methodology can assist United Nations inquiries and other human rights fact-finders in strengthening the credibility of their findings.
Highlights
Contextualising Human Rights DocumentationAs widely recognised in transitional justice scholarship, since the late 1980s and early 1990s transitional justice has emerged as a new field of study, presenting the fields of democratisation and atrocity prevention with a new set of policy tools.1 Against this background, the role of testimony and the documentation of human rights abuses have come to be recognised as crucial in addressing instances of widespread violence
Building on an expanding body of scholarship on the subject, as well as the author’s own experience with fact-finding efforts sitting at the intersection between traditional international human rights law and international criminal justice, this article argues: (i) that human rights fact-finding has evolved in three waves; (ii) that the third wave of human rights fact-finding is characterised by an “accountability turn”; and that (iii) this turn has brought about an additional set of challenges to the already thinstretched capacity of UN human rights inquiries
The panorama of human rights fact-finding has been in constant evolution since the first wave of human rights fact-finding appeared in the late ‘70s and early ‘80s
Summary
As widely recognised in transitional justice scholarship, since the late 1980s and early 1990s transitional justice has emerged as a new field of study, presenting the fields of democratisation and atrocity prevention with a new set of policy tools. Against this background, the role of testimony and the documentation of human rights. The diversity of actors and their mandate will influence the level of thoroughness, as well as the adoption of a certain methodology and standard Each one of these groups will conduct its own fact-finding based on their own mandate and institutional requirements. The different needs and mandate of these two typologies of actors raises serious ethical and pragmatic challenges Most often, these various groups interact with one another and contribute to one another’s fact-finding.. The desire for accountability among affected communities has contributed to more and more human rights groups documenting abuses in the hope that their work might increase demand for criminal trials This has had the consequence of “popularising” justice; it has increased confusion as to both the legal framework and procedural requirement to be followed in these instances of fact-finding. The article will conclude with a discussion of how some changes in the fact-finding methodology might constitute a way forward that could benefit third wave UN fact-finding entities, and more generally third wave fact-finding bodies regardless of their scope and/or their official or unofficial capacity
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