The investigation of cases of human rights violations largely depends on the procedures which have, for a longer period of time, proved to be the most effective. The investigation of massive abuses and serious violations of human rights is relatively new, and the principles on which these types of investigations are conducted is most often identified with the stages of criminal investigations.
Investigators of human rights violations have a very demanding task, which is to determine the cause of human rights violations, period, and material evidence as well as to track down the violators on the basis of the collected evidence. Lastly, investigators are required to write detailed reports on human rights violations based on objective facts. There are many ways in which investigations of human rights violations can be conducted. Therefore, this article provides an overview of four initial investigation phases for young professionals that were established by International Crimes Prosecutor and Professor Dermot Groome from the PennState University in the United States.
1. Throwing the Net
The first phase of the investigation of human rights violations can be compared to throwing a fishing net. Immediately after the incident took place, investigators should try to cast the widest possible net in order to gather as much evidence as possible. The main task of the investigator is to identify, collect and document available evidence. Usually after the incident of certain human rights violations took place, there is plenty material evidence and testimonies. It is crucial that investigators collect as much evidence as possible without trying to analyze or test it. Analysis and tests are done in later stages.
In the process of collecting evidence, the investigator must reevaluate the collected evidence in order to ascertain whether the evidence indicates the existence of additional sources of evidence. The investigator must determine whether or not there is a path of evidence to follow. Furthermore the investigator also must ask the question ‘does certain evidence point to the existence of additional evidence’? For example, the investigator goes to the place where the attack took place during a public protest and there he/she finds a press card. This card indicates that a representative of the media was present at the protest. The investigator finds the owner of the press card and it turns out that the TV crew was on the scene. From this information the investigator draws new information on the TV crew, finds the TV crew and receives videos with recorded protests from them. Each time the investigator finds new evidence, he/she extends the net and increases the likelihood that more evidence will appear.
2. Detecting the Case
The second phase of the investigation of human rights violations begins once the investigator concludes that he/she collected enough evidence. Sometimes it may be impossible to have access to some of the evidence, but the investigator must ensure that the majority of evidence is identified. At this point the investigator begins to detect the case. According to Professor Dermot, it is important to distinguish between detection of the case and the fabrication of the case. The investigator must not fabricate the case by creating what he or she considers is the truth while applying a biased evaluation and manipulation of evidence.
The investigator needs to detect the case while carefully reviewing the collected evidence and allowing the case to open itself and must leave aside all prejudices, biases and assumptions and ‘’listen to what the evidence has to say’’. The investigator has to let the case be exactly what evidence says it is and not perform and shape conclusions for which he/she considers to be the ultimate reality of the case.
Investigators like all other people often become victims of their own unconscious bias, expectations and beliefs. In order to remain objective throughout the investigation, the investigator is required to do some efforts: It is not enough to just be careful about not being biased since a person can unconsciously become biased. For this reason, investigators must always be careful to make sure he/she has not come to personal conclusion, but to the conclusion that is implied solely by the established facts.
Once the investigator detects the case, he/she can begin the process of formulating the theory and the list of suspects. The evidence at this stage usually does not indicate a particular theory or suspect, but can support several different theories and may even be consistent with several different suspects. The investigator must identify every possible scenario and take into account all possible suspects. For example, the investigator may talk to witnesses that are at his or her disposal and then develop a theory that people were killed because of their political activities.
3. Investigating the Case
The third phase of investigation goes back to search for evidence. The investigator, having identified all possible theories and suspects, goes in search of evidence that either supports or eliminates any theory or suspect. During this phase, the investigator carefully examines the evidence in order to extract as much information as possible. For example, some physical evidence might have to be sent for forensic analysis or the witness statements must be checked in mutual comparison. While the investigator goes deeper into the case, he/she may find that some of the theories and some of the suspects will have to be eliminated, and, therefore, the other theories will become more likely used.
It is important all evidence pointing to the suspect is examined in detail. For example, in a particular case, the suspect stated that he/she was with friends in another city at the time of the murder. If this is true, then he could not have committed the murder. This is mitigating information, which, if it proves to be true, proves the innocence of the suspect. The investigator must investigate any mitigating information. In this case, the investigator must interview the people with whom the suspect claims that he was. The investigator cannot ignore the mitigating information just because he/she believes that that the suspect is lying. The investigator is obliged to carefully investigate and examine every possible information that could prove the innocence of the suspect.
4. Building the Case
At this phase of the investigation, the investigator should have a clear idea of what has happened and who the responsible persons are, based on strong, credible and reliable evidence. During this phase of the investigation, it is important to concentrate on evidence in the light of the law. The investigator critically examines the case and the laws he/she suspects have been violated in order to determine whether the evidence in this case meets the legal criteria.
The investigator must identify any gaps in the evidence, and develop strategies to fill these gaps. There may be gaps in time because the investigator has no evidence of where the victim was before his/her death. There may be gaps in material evidence as the investigator still has not found the weapon used in the attack. During this last phase of the investigation, the investigator must be sure that every possible option is exhausted in filling these gaps.
Another important task for investigators during this last phase is to examine the laws that apply to the certain human rights violations. The assessment must be made regardless of whether the evidence shows all aspects or elements that a certain law has been breached.
For example, during investigation of the cases of torture, the investigator may find that he/she has enough evidence that torture has been committed in order to identify the violators. However, following a subsequent interpretation of the legal definition of torture, the investigator understands that he/she has foreseen evidence that torture has been committed or induced by an official person, as required by Article 1 of the Convention against Torture and Other Inhumane and Degrading Treatment or Punishment (1975). The investigator must continue to search for evidence indicating this element of crime and torture.
At the end of the investigation, the investigator should be able to produce a report that reflects a fundamental and professional investigation by revealing the truth about the event with credible and reliable evidence.