Witness testimony has traditionally played a central role in human rights fact-finding and investigations. Non-governmental organizations (NGOs), governments, and United Nations (U.N.) offices and inquiries rely on witness accounts for advocacy, truth-telling, and accountability purposes. However, witnesses are not always accessible to investigators. The Public Interest Advocacy Centre has examined the challenges investigators face when conducting interviews in restricted access contexts (RACs) and provides recommendations for whether and how to proceed. These recommendations can guide those who are mandating investigations, and the investigators conducting interviews. They should also inform how policymakers interpret and engage with an investigation’s results.
In recent years, it has become increasingly difficult for investigators to gather in-person witness testimony. International investigators working for U.N. Commissions of Inquiry and Fact-Finding Missions, or for international NGOs (INGOs), are often unable to access the country or territory where the relevant conflict and violations occurred (see, for example, the final reports of the Commission of Inquiry for North Korea and the Fact Finding Mission for Myanmar). Some are denied entry for political reasons, while others are prevented from travelling by security risks and resource constraints. In countries where the security situation is volatile and the parties under investigation remain in power, local NGOs are similarly limited in their freedom to access and interview witnesses. The COVID-19 pandemic has only exacerbated this problem, and likely will for years to come.
When investigators are operating in RACs, they have two options for interviewing witnesses. Many rely on testimony gathered from witnesses outside the relevant country (“out-of-country witnesses”), including refugees, asylum seekers, migrants, and foreign professionals such as journalists. Where possible, investigators can interview these witnesses in-person. The second option is to interview witnesses remotely, using various technology platforms. This provides virtual access to witnesses both inside and outside the country under investigation.
Investigations that employ either method of interviewing are often criticized by the very parties that denied them access to witnesses, and by others that are hostile to the investigative process. The fact that investigators spoke mostly with witnesses who are refugees, or only interviewed survivors on a screen, is used to discredit the objectivity and accuracy of their findings. In other cases, consumers of the investigation’s findings may be genuinely unsure about how best to evaluate and interpret data collected remotely.
Sometimes, criticism of investigations in RACs is politically motivated and made in bad faith. With the right processes, protocols, and plans, and with context appropriate mandates, remote interviews and interviews with witnesses abroad can produce high-quality testimony in a safe, efficient, and survivor-centric manner. However, it is true that interviews in RACs involve unique challenges, which must be addressed using a tailored approach. Until now, there has been no comprehensive, public guidance on how to develop this approach.
Over the past 12 months, we have interviewed and consulted with dozens of investigators, researchers, and lawyers working for U.N. Inquiries, NGOs, and international courts and tribunals. All of these interviewees have experience investigating some of the gravest conflicts, crises, and violations of the 21st century, and none were provided full, in-person access to witnesses. We asked them about the practices they developed to conduct safe, reliable interviews remotely or outside the country under investigation – both the ones that worked, and the ones they would not repeat. Below are just a few of the takeaways from these consultations, along with some reflections on how policymakers should evaluate and interpret the results of investigations in RACs.
In most cases, the pool of witnesses in RACs is smaller than the pool available when investigators can physically enter the country where a conflict occurred, and where most survivors live. A smaller witness pool can also mean a less diverse witness pool. If most of the available witnesses are refugees and asylum seekers, the information they can provide will be limited by who was able and/or forced to flee. The experience of witnesses from, for example, certain provinces or ethnic groups, or those of elderly witnesses, may not be represented.
When relying on remote interviews, investigators acknowledge that many witnesses will not have access to a communications device (whether a phone or a computer); are unfamiliar with remote communications technology or applications; or might not have the connectivity, power, and private space necessary to participate remotely. Women, the elderly, and minorities are often particularly affected by these barriers. There are also certain categories of people, including children, with whom it is unadvisable to conduct remote interviews.
Access to the smaller pool of witnesses who are available in RACs is further limited by the often-significant security threats common to these contexts. Many of the investigators we spoke to have worked in witness communities that were monitored or threatened by the authorities or parties under investigation. Witnesses located inside the country are sometimes under physical or digital surveillance, which prohibits remote contact. Those living outside the country, whether in refugee camps or resettled in third countries, do not escape what one investigator described as the “tentacles” of hostile parties that engage in a range of transnational repression tactics. Understanding these complex dynamics remotely and making decisions based on incomplete information can be difficult. Any mistakes put the safety of witnesses, investigators, intermediaries, and others at risk.
Arranging support and protection for witnesses in these fraught environments can also be challenging. Depending on their migration and visa status, many witnesses located abroad do not have access to appropriate psychosocial, medical, and legal services. Identifying, vetting, and arranging access to service providers remotely requires extra time and resources. When remote interviews are conducted with witnesses in volatile contexts, it is especially hard for investigators to arrange safe access to support from afar, without being able to meet service providers in person.
All of these challenges surrounding engagement with witnesses in RACs – diversity, technology, limited number of witnesses, security – similarly affect cooperation with intermediaries. Identifying reliable intermediaries and vetting them remotely, without spending time with them in-person, is the first hurdle. Once intermediaries have been selected, they may be required to perform a range of functions that investigators cannot perform themselves, including: identifying potential witnesses; contributing to security assessments; finding interview locations; and helping connect witnesses with referral services. As there may only be a small pool of intermediaries available, and they often work with a range of other NGOs and investigators, there is a risk in RACs of overreliance on certain intermediaries. As a result, investigators may end up with limited entry points to witness communities and become entrenched in a narrow network of sources.
When it comes to the actual interview, many investigators we spoke to unsurprisingly found that conversations over remote platforms are generally more challenging than in-person interviews. Witnesses understandably find it difficult to trust an investigator who is not physically in front of them, and investigators find it hard to build rapport. There may be frequent interruptions when technology glitches, and conversation is often more stilted than it would be in-person. Responding to witness distress, monitoring the safety of the witness’s location, and knowing when to take breaks, probe an account, or close the interview were some of the common challenges that investigators identified.
Overall, investigations without access to the country or area under investigation require tailored methodologies and processes for interviewing witnesses. Implementing these often takes more time and resources than it would if investigators had full, in-person access. As one investigator pointed out, it can take months of preparing the appropriate technology, remotely establishing referral pathways, identifying on-the-ground support, and building trust and rapport with the witness from afar before investigators can actually conduct an interview. The cost of investigations in RACs is often elevated by the need for missions to multiple countries abroad, and the price of reliable, available remote interviewing technology.
Considering the security and witness support challenges that are unique to RACs, it is best if investigators have extensive interviewing experience and receive specialized training. Without detailed instruction in trauma-informed remote interviewing and digital security, it will not be possible for investigators to ensure the safety and wellbeing of witnesses throughout the interview process.
Policymakers and mechanisms should think through these factors when creating mandates, allocating a budget, and planning other operational aspects of investigations in RACs. For example, when planning for such an investigation, sufficient time should be allocated for preparation steps that are crucial for security and witness wellbeing. Furthermore, it should not be assumed that the use of remote interviewing will lower the cost of conducting interviews. Policymakers should also consider carefully whether, given the volatile security context of many RACs, the risks to witnesses are justified. This should factor in collateral risks, such as the danger of normalizing the sharing of sensitive information over potentially insecure channels.. Many investigators who have conducted interviews remotely emphasized the importance of prioritizing alternative ways to collect information on RACs, for example by consulting a range of relevant experts and conducting open source investigation. Investigators can then approach witnesses to fill gaps in this information.
When evaluating and interpreting the information gathered through interviews in RACs, policymakers must also keep questions of diversity, technological access, security, and sample size in mind. It is therefore essential to ask in each case which voices are represented, which are absent, and why.
This is not to suggest that witness interviews in RACs are always too risky, costly, or time-consuming to be effective. If investigations are prepared from the outset for the challenges of remote and out-of-country interviews, it is possible to gather valuable information from witnesses regardless of their location. Adequate preparation requires consulting the appropriate guidance, learning from prior investigations, and developing well-constructed procedures, policies, and an investigation strategy. Policymakers, legal professionals, and others who draw on the findings of investigations in RACs should thoroughly examine their methodology and protocols, comparing these with best practice guidelines.
Given the emotional and resource costs to interviewing in RACs, many investigators advocated a targeted approach to using witness interviews, with an emphasis on quality over quantity. While the number of witnesses interviewed is sometimes considered a marker of an investigation’s reliability and accuracy, this attitude can be harmful in contexts where, for example, witnesses have inadequate access to follow-up services.
In some cases, investigators will be connected with witnesses who are keen to talk to them, or witnesses with valuable information, but it will not be possible to adequately address security, psycho-social, and logistical concerns and obstacles. The investigators we spoke to consistently stressed that, in these cases, the interview should not be conducted. The risks of harm to the witness and other involved parties, and of tainted or compromised information, are simply too high, particularly when conducting a remote interview. Investigators strongly advocated for internal cultures that supported individual decisions not to interview when it was deemed physically or emotionally unsafe to do so. Sometimes this will affect an investigation’s ability to implement its mandate, but any resulting information gaps can be at least partially filled using other sources, and explained in the investigation’s findings. Even when witnesses can safely be interviewed, there will inevitably be gaps in the information available in RACs. Investigators should always be transparent about the limitations of the witness information they can access, acknowledging this in publicized findings.
Our guide was written to assist investigators to evaluate whether, how, and when they should conduct witness interviews in RACs. The hostility of parties under investigation or the risks of the COVID pandemic should not impede investigation of violence and injustice, but they may alter how investigators approach their fact-finding mandates. Understanding this will assist policymakers to interpret and act on these findings.
**Readers may be interested in reading the full recommendations and interview guides: Restricted Access Interviews is a companion piece to the Institute for International Criminal Investigations’, IICI Guidelines on Remote Interviewing. The PIAC guide is detailed and covers in-depth discussion relating to conducting interviews without access to the country. The IICI guide is a short guide focusing specifically on remote interviewing.