The Importance of Professional Expertise in Gathering Evidence of Mass Atrocities
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).
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