Justice for core international crimes committed in places like Syria is currently non-existent. Yet, should our frustration with this lack of accountability lead us to alter widely-accepted rule of law practices in seeking that accountability? This is the concern raised by Caroline Fehl and Eliska Mockova in “Chasing Justice for Syria,” published by the Peace Research Institute Frankfurt. Their article asks the interesting question as to whether a paradigmatic shift is occurring, under which private-public documentation and evidence collection precedes and drives accountability mechanisms, particularly criminal tribunals. I think we should accept that this paradigm shift is occurring.
This then begs the question: How can documenters best ensure — prior to knowing what rules of procedure and evidence will govern the information they collect — that their actions do not cross fundamental lines that would render the fruits of their efforts inadmissible in a court of law? Normally, investigations that collect evidence take place under the rules of procedure and evidence of the accountability mechanism – such as an international or domestic court – that has jurisdiction over the situation. However, in the context of Syria, Iraq and elsewhere, documentation is being collected without the establishment of a criminal court or tribunal, and therefore without the benefit of such rules. What should guide those who are documenting serious crimes taking place amidst conflict, who hope that the information they gather will help hold those responsible to account? Equally important, what is the duty of care that they, and those who accept such information from others, must exercise to ensure that the most basic, fundamental rules pertaining to evidence collection are adhered to?
The challenge is this: There is no single, commonly accepted set of rules of procedure and evidence governing international or domestic criminal investigations. While the last few years have seen the creation of a number of manuals, guidelines and handbooks, most deal with a particular aspect of conflict-based crimes (some examples include: on sexual and gender based violence; including against men and boys; Commissions of Inquiry; and civil society documentation of serious human rights violations). Rules of procedure and evidence vary considerably between civil and common law national jurisdictions, between national and international courts, and even among international courts. Thus, those documenting serious human rights and international criminal law violations in Syria, Iraq and elsewhere in the absence of a criminal tribunal or court are operating without specific guidance on what will make their information directly useful to any future accountability mechanism. This important aspect of accountability has not gotten much attention from countries, including from the United States, when supporting documentation and investigations. Zachary Kaufman’s timely and balanced piece in Just Security on UNSC 2379, while touching directly on the “use of evidence,” does not include this issue of collection in the absence of rules of evidence, among the otherwise comprehensive list of questions this resolution raises for international justice.
That said, there are some tenets that appear to be broadly accepted in practice. For example, there seem to be two clear situations when even the generally more open international tribunals would not consider some piece of information or evidence. One is if the information (and I would argue also the way it was obtained or handled) casts substantial doubt on its reliability as evidence. The other is if its admission would, for some reason, be antithetical to, and seriously damage the integrity of the accountability proceedings. In other words, there are acts and omissions that, even in the absence of rules of procedure and evidence, should put documenters and those accepting the documented information on notice. These include: obtaining information through torture, the fabrication of information, and obtaining information without regard to the danger that its collection poses to victims, witnesses, survivors and those collecting the information – the “do no harm” principle.
In the absence of clearly defined rules and standards, what is collected and how, and what duty of care is exercised comes down to the judgement of those collecting, or accepting information from documenters. The more expert, professional and experienced the people involved, the more likely that they will ask the relevant questions about when the information is collected or passed. The more these professionals understand working under international human rights and criminal justice norms and international conditions, the more likely they will be able to balance the probative value of information against the potential cost of harming witnesses and survivors. And if they also have a cultural, linguistic and legal affinity to the place and people where the alleged crimes have taken place – giving them a contextual understanding — that judgement will be even better.
In these shifting times, when evidence collection is increasingly preceding the establishment of specific rules of procedure and evidence, it is even more important that the documentation and collection of information for accountability purposes be done and supervised by professionals, who understand how best to collect information to maximize its likelihood that it will be admissible in court, and who can minimize the chances of information gathering doing more harm than good to the people we are ultimately trying to help. It is important to understand that insufficient regard to these factors is likely to damage the justice process, and can undermine the long-term goal of strengthening international criminal justice.