Evidence-Based Fact-Finding

On 20 May 2015, The Hague Institute for Global Justice organized an expert roundtable and panel discussion on evidence-based fact finding in partnership with the Program on Humanitarian Policy and Conflict Research (HPCR) of Harvard University’s School of Public Health and the Government of Switzerland. The two events provided an opportunity for an interactive discussion about opportunities for improved fact-finding, including the development of methodologies and approaches for surmounting common challenges that have been encountered in recent fact-finding practice.

The discussion was opened by Dr. Abiodun Williams, President of The Hague Institute and His Excellency Mr. Urs Breiter, Ambassador of Switzerland to the Netherlands. Mr. Breiter highlighted the importance of the recently published HPCR Advanced Practitioner’s Handbook on Commissions of Inquiry, the culmination of a multi-annual initiative undertaken by Harvard University with the support of the Swiss Federal Department of Foreign Affairs. He pointed to the challenge expressed by practitioners of a lack of methodological guidance in the field, which the handbook seeks to remedy by proposing methodological approaches based on the experiences of past missions.

The public panel included five esteemed speakers: Judge Philippe Kirsch (Former Chairman, UN Commission of Inquiry on Libya), Baron Serge Brammertz (Prosecutor, International Criminal Tribunal for the former Yugoslavia),Dr. Theo Boutruche (Former Human Rights and IHL Expert and Investigator on the Independent International Fact-finding Mission on the Conflict in Georgia), Ms. Cynthia Petrigh (Former Human Rights and IHL Expert on the International Monitoring Team in Mindanao) and Professor Claude Bruderlein (Chair, Harvard Group of Professionals on Monitoring, Reporting, and Fact-finding). The panel was moderated by Jill Coster van Voorhout, researcher under the Rule of Law program of The Hague Institute.

Judge Kirsch explained the importance of the HPCR handbook’s concrete conclusions based on past examples and highlighted that the legitimacy of any Commission of Inquiry depends on its composition and mandate. He stressed the need for professionalism and communication before, during and after a fact-finding mission and the production of a Commission’s report. “If you do things perfectly on the ground but you don’t communicate properly,” he said, “the chances of follow up will diminish because of the way you have communicated, and not necessarily because of what you have done”.

Prosecutor Brammertz said there is already much more professionalism in fact-finding missions compared to the past. However, the difference in quality of missions means the right people are not always chosen. He put forward the idea of a more permanent fact-finding Commission that could be deployed on short notice and which could make quick assessment about what is necessary in a given situation.

Dr. Boutrouche addressed the importance of legal analysis in the area of monitoring and fact-finding, stressing the need for knowledge of legal norms. He put forward that reports often insist on only looking at facts, but the language used already carries some form of legal meaning. In that regard, he said more attention should be paid to legal expertise on issues to create a sound basis for credible investigations.

Ms. Petrigh highlighted the fundamental difference in mandate and capacity of international courts and tribunals and fact-finding missions. She also stressed the importance of the protection of victims and striking a balance between collecting facts and protecting individuals. “In the end, we have to remember that as a fact-finding mission, we will only produce a report,” she said, “and however important it is, the balance between what the report is doing and the risk to the person must be considered.”

Professor Bruderlein touched upon the guiding intention to contribute to more informed practice by using an empirical scientific approach as the basis for the HPCR handbook. The use of an experiential approach, starting with practice and moving towards theory, allows practice to inform the planning and evaluation of future Commissions of Inquiry and fact-finding missions.

Alongside the core debate of the professionalization of fact-finding missions, the panelists recognized the privatization of fact-finding, the tension with judicial processes and the expectation of fact-finding versus gathering evidence as key questions in the field.

The preceding closed roundtable discussion convened a select group of approximately 20 leading experts and practitioners (from first responders, international courts and tribunals, academic institutions, training centers and fact-finding rosters). They discussed approaches to overcoming common challenges in fact-finding practice.

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