From Documentation to Accountability: Legal and Political Consequences of Human Rights and Conflict

When there is a conflict, an emergency call for documentation arises and the documentation process can be called back in itself. At this publication "moment" digital content can go around the world in a few short minutes, legal verifications and witness protection, chain-of-custody review, and attribution can only be done with patience. Human-rights groups, investigative institutions, the media, prosecutors and communities have their own rules and procedures, as well as differing timeframes. Finding ways to link together those systems in a way that does not compromise accuracy or safety of victims is required, with legal and political implications of failure to do so.

Documentation will not fulfill accountability; it is only the first step. Reliable work dates, places, persons and lines of command, identifies legal categories, discerns witness credibility, and outlines preservation steps. Digital content introduces opportunities and dangers: metadata can aid the process of verification, manipulation, copying, unsafe storage and circulation can endanger victims and the extent of the admissibility of the evidence. Based on OHCHR guidance the independent fact-finding is a way of developing and recording the facts, bringing the facts to the attention of the decision-makers and raising issues as to possible responsibility.

Then, investigators, prosecutors, courts, reparations entities, policy makers and impacted communities need to move from information to action to achieve accountability. If any of the links between the archives break, there may be no way to salvage an impressive archive.

When it comes to protection of rights, women's situation tends to be worse in a conflict situation. The greater the sense of threat, the more that it's acceptable to be secret, to have an emergency competence over the law, to be watched, detained and forced, and the less it's acceptable that any of the people around you will be held accountable. These pressures don't have to amount to civil war to alter institutions; they can also be a series of political manifestations, armed mobilizations, hate campaigns or mere sporadic episodes of violence. State action and lack of state action thus need to be addressed, as do non-state coerce.

Requirements of legality, necessity, proportionality, non-discrimination and remedy are not negated by a government's duties to prevent violence and to protect public safety. Security without that limitation can lead to greater war, the one they're attempting to limit.

The accountability framework from moral, criminal conviction to punishment and rehabilitation, is not complete. In addition to truth, justice, reparations and guarantees of non-recurrence, United Nations experience which became clearer in recent times, emphasizes memory and play of victims in the practice of transitional-justice. Criminal cases implement the responsibility of individuals, but constrain issues of capacity and evidentiary threshold so as not to allow for prosecution of all violations. Truth processes can excommunicate patterns of harm: reparations can acknowledge harm done; and institutional reform can minimize the recurrence of harm.

There shouldn't be anything used in place of one of the others. The lack of consequences for a truth commission can turn the process into an act; actions of prosecutors without victim support into an abstraction. Equal relevance of complementarity is due to violations of rights sometimes impacting the legal, the livelihood, the health, the family, the political and the public dimension simultaneously.

Human rights groups link to legal forums and to international fora the local experience. These types of groups record patterns, come to the rescue of victims, translate the technical law, inform oversight bodies and keep the law on the map when the next waves of media attention pass on. The donor agenda orientation, restrictions on access to data and security risks, as well as unequal representation, may still shape agendas. The credibility of the process can be increased by having clear processes and by making sure that the information is well verified, is accepted as conflict-sensitive and by involving affected populations.

Also, recommendations made in the context of advocacy benefit from: a) an implied or explicit institution that will implement, b) a roadmap (a legal process), c) an expressed budget implication, and d) a measurable deadline. There is indeed a moral urgency that has garnered interest, but there are questions about how, institutionally, urgency becomes reform.

The United States is home to a complex and compact accountability system. It is a duty shared by federal and state courts, state and federal inspectors general, civil-rights units, legislative committees, professional boards, local prosecutors and judges, journalists, and civil-society organizations. Although the fragmentation establishes numerous access points, it also affords the opportunity to pass the buck between institutions. A legal system of federalism can be both a restraint and an aid to experimentation and local autonomy, but it can also yield disparate regional solutions to comparable illegality.

You need to share evidence, have a jurisdiction and have protected independence and follow-through beyond the media hype to be effective and accountable. A reported non-actualized but non-punitive, or a settled but un-changed, or a proven dissimulated (non-institutionalized) prosecution can treat an event without altering the motivating force.

Security policy can appear as a game of one goal versus another: rights, effective rights, the ability of the state to be effective, can all fall victim to impunity. Unreviewable coercive power leads to less public cooperation, poorer quality intelligence and public outlet of revenge, and poor performance results if the latter is intended as a consequence of the coercive power. Rights-protective institutions have definite mandates, documented authorizations, independent review, easy complaints and consequences for command responsibility. Oversight should not just be about looking at individual offenses, but also at designs of policy, such that consequences of laws applied on a large scale can be seen, which are harmful either materially or symbolically.

There are also good safeguards against inappropriate political requests by the authorities. But with professional independence, open standards and records open to examination, security agencies can avoid being required to follow instructions in the service of a partisan interest at the cost of and to the detriment of a legitimate public need.

Inquiry into similar institutions and comparison with the general environment is useful, but a close up should be used as well. Administrative records provide insights into enforcement decisions and responses by organizations, and event records essential information on timing and geographic concentrations. Surveys can be used in experiments to probe public tolerance; process-tracing can be used to unravel salient decisions. Additional indicators are court opinions, internal guidance provided, orders placed, personnel turnover, disciplinary results and budget changes.

There are no one-size-fits-all indicators of democratic backsliding and accountability. This is because danger is often distorted in the public discourse, underreporting of data by official issue statistics and legal change without implementation becomes relevant. Trust increases if pointing occurs at several levels of government and that the pointing is done by independent actors pointing to the same mechanism.

When documenting a conflict, it is important to distinguish between fact and reasonable inference on the one hand, and allegation and lack of certainty on the other. There may be a need for a delayed publication, using controlled access, anonymizing or referring to a specialized victim investigator. Being cautious may seem like wisdom where politics is concerned.

Participation from the victim in the following areas of evidentiary practice and remedy enhances legitimacy: (1) where it influences the priorities being set; (2) where it influences protection measures being put in place; (3) where it influences evidentiary practice; (4) where it influences the form of remedy that is made available to the victim. Command responsibility, and organizational accountability is key, since many times the acts of reversion into repeated abuses do not stem from one decision, operating at the lowest operational level. Commitment is also given away more readily in the budget than in speeches, as investigation, witness protection etc. deal with resources that need to be sustained in order to make a difference.

In the context of public reporting, it would be helpful to reflect the outstanding issues and any work accomplished, rather than merely procedural work which might be interpreted as work accomplished. Regardless of leadership changes, institutional memory can be safeguarded to ensure reform is bound by policy, training, access to archives and outside review. A credible process also safeguards due process as accountability will seem hollow if penalty is seen to be predetermined, or select politically.

Capitalization on Investigative independence means investigations have to be kept protected with regards to appointments, tenure, funding, access to evidence and publication of findings. Witness security has to start prior to making the public disclosure of information; otherwise, it creates the scenario for Witness retaliation, trauma or displacement, or loss of livelihood. When material might lead to legal action it should be verified digitally to keep a record of the origin, changes, where the item is and when it was verified.

Reparations may involve restitution, compensation, rehabilitation, public acknowledgement, memorialization and measures to guarantee the non-repetition of such acts at an institutional level. By using definitions of harm provided by the community in which the child lives, consequences may be identified that are not included in criminal files such as: educational loss, separation from family, stigma and political exclusion. Monitoring plans should have specific conditions for exit – should be present in settlement – and benchmarks for organizational behavior change rather than closing the settlement.

Professional licensing organizations can further promote accountability if the misconduct discussed above is in violation of ethical obligations that are not necessarily criminal or civil. Journalism not only provides avenues to make people accountable, legal structures have to establish their own for evidence verification, rather than relying on informational exposure. An overlapping system requires provisions regarding when and how complaints are to be referred between agencies, otherwise the complaints will continue to be passed around between agencies, or evidence will be lost as deadlines are reached.

Truth-seeking needs to reveal patterns and structures and doesn't just provide a collection of individual stories without policy, command and institutional incentive analysis.

When accountability documents, accountability is law, and victims are recognized, accountability is institution, and public explanation, accountability is credible. A single instance of prosecuting can make difference; but can no single case heal all the broken rules, or relations. The ability of a single report to provide truth can't singularly enact reform. Only real change in budgets, appointments, procedures, training, oversight and access to remedy is when there is durable progress.

That's a tough commitment, but anything less may result in what is known as "visibility without anything. The central issue in the protection of human rights is therefore how institutions can learn to be abused without becoming more normal about the exceptional powers or responsibility can grow diffuse in the face of fragmented authority.