Monitoring and Reporting on Violations of International Law

Since 1913, when the Carnegie Endowment for International Peace investigated violations of international law during the Second Balkan War, the practice of monitoring and reporting has developed under the direction of multiple mandating bodies including the United Nations Security Council, European Union, and Arab League.1 Within the United Nations, specific treaty bodies, including the United Nations Human Rights Council, Committee on the Elimination of Racial Discrimination, and Committee Against Torture, monitor member state compliance with each of the six core human rights treaties. Likewise, non-governmental organizations have also increasingly taken part by supporting such missions or by conducting their own parallel investigations, even if they are not considered to be official mandating bodies as such.2

The last decade has featured more monitoring and reporting missions than any other: in 2012 alone, monitoring and reporting missions were present in Syria, Libya, Thailand, Guyana, Brazil, South Africa, the Occupied Palestinian Territories, Sri Lanka, Cote D’Ivoire, and the Solomon Islands. In 2005, the United Nations Security Council built upon the growing field of monitoring and reporting to pass the landmark Resolution 1612, which outlined specific monitoring mechanisms to prevent and eliminate the use of child soldiers and abuse of children in conflict. In more general terms, monitoring and reporting missions’ contributions can be defined by three important features, including:

  • Developing the data necessary to implement early warning systems for rights violations;
  • Compiling the knowledge necessary to develop rapid-response systems that mitigate the harm caused by violations; and
  • Establishing proof of culpability so as to hold those responsible for the violations accountable.3
Mission Types

Not all types of missions seek to accomplish all three of these goals. The mandates of monitoring, reporting, and fact-finding missions are distinguished as follows:4

  • Monitoring missions seek to prevent the violation of international law by gathering contextual information that may indicate that such a violation is about to occur. Monitoring missions generally involve peaceful dialogue with the alleged perpetrators and may take place under the framework of international peace operations. The overarching goal of modern monitoring missions is to protect civilians and ensure the conditions for eventual reconciliation among all parties to the conflict.
  • Reporting missions serve a primarily advisory function. Armed with evidence of specific instances where international law was violated, reporting missions provide specific recommendations to the violators on methods of mitigating the resultant harm and reducing the likelihood of further violations. Such recommendations to the perpetrating actors may include the provision of social services to victims and direct discussions with the violators to change their behaviors, for example, and are supplemented by suggestions directed at the international community and the monitoring mission itself for mitigating future incidences as well.
  • Fact-finding missions investigate specific violations of international law in a systematic manner for the purpose of a) establishing proof of responsibility, b) testing the validity of prior allegations, c) establishing an even deeper understanding of evidence, or d) fulfilling all three goals by way of a mixed approach.5 Whereas monitoring and reporting missions are oriented toward the prevention and mitigation of harm to civilians, fact-finding is intended to ascertain which means of ensuring accountability is most appropriate. Fact-finding missions go beyond simply gathering evidence by determining which courts (or other corrective measures) would be most capable of correcting the violations. (Whereas “monitoring and reporting” is standard terminology to describe investigations into international law violations, “fact-finding” is an emerging category to capture the distinctions from the other two.)

It is critically important that those carrying out the mandate fully understand what type of agenda they are tasked with carrying out. For example, by confusing a monitoring mission (which aims to maintain dialogue with the subjects under investigation) with a fact-finding mission (which aims to establish responsibility), investigators would antagonize those they seek to build a relationship with and risk undermining the ability to remain as monitors in the future.

Whether or not the monitoring and reporting mission looks into violations of humanitarian law or human rights law is determined in the original mandate. Investigations into violations of the two bodies of law involve different techniques and standards, so that while both fields may contribute to a given mission, the viability (both in terms of logistics and credibility) of a joint mission to address both is limited. In practice, there is a tendency to involve human rights experts in monitoring and reporting missions that focus on humanitarian law. While there is increasingly widespread acknowledgement of the ways in which human rights law can apply to situations of armed conflict, the focus on human rights violations can alter the perceived legitimacy of military actions that are, in fact, legitimate under humanitarian law.6 It is therefore important to account for potential distortions when human rights law is applied to monitoring and reporting missions with humanitarian law mandates (and vice versa).

Tensions

As additional missions have been undertaken, each implementation of monitoring and reporting mechanisms has revealed new points of tension. The ad hoc way in which international mechanisms have developed is central to the persistence of these issues: while the existence of multiple mandating bodies diversifies the means of initiating new missions, divisions across the mandating bodies prevent agreement upon guidelines, training opportunities, and rosters of qualified investigators.7 Without sufficient dialogue, the following issues remain problematic.

The “Do No Harm” Rule

A monitoring and reporting mission is conducted with the ultimate aim of protecting communities. However, it can easily undermine its missions if it fails to account for the psychological and physical wellbeing of those interviewed.8 By asking the individual to recount his or her experience, interviewers may bring about the revisiting of traumatic memories. This can cause lasting psychological damage beyond the interview itself.

Likewise, the act of providing information to investigators can make an individual vulnerable to reprisals. Such reprisals are unfortunately all too common: between June 2011 and July 2012, reporters of rights violations in Algeria, China, Bahrain, Kazakhstan, Colombia, Belarus, Malawi, Saudi Arabia, Sudan, Lebanon, Iran, and Sri Lanka were all targeted by state and non-state actors.9 Of course, primary responsibility lies with the state that either perpetrates the reprisals, shares information with those who would carry out the reprisals, or fails to make an effort to provide protection. However, as in the case of psychological trauma, proper training of investigators and mission leaders is critical for limiting the potential for reprisals as much as possible.

Standards of Proof (“Degrees of Certainty”) for Assigning Responsibility in Fact-Finding Missions

Given the seriousness of its determinations, it seems appropriate to subject fact-finding missions’ propositions to standards of proof (sometimes referred to as “degrees of certainty”). But for some, the imposition of formal standards to the irregular process of fact-finding missions is problematic. With the challenge of short-term deadlines, lack of information, and dearth of financial, human, and physical resources, the application of strict standards of proof in fact-finding missions is prohibitively difficult.10 As a result, the standard of proof is lower and more variable for fact-finding missions’ propositions than it is in judicial courts. Whereas the judicial system may make judgments only when guilt is beyond doubt, in fact-finding missions the same judgments may be made on a “balance of doubt” basis.

The lack of standards of proof has effects that reach beyond the political repercussions for the accused, the victims, and the mission itself, then: if the case does go to trial, the lack of coherency between fact-finding and judicial standards challenges the translation of fact-finding determinations into the courtroom. The application of standards is necessary, but its difficulty in practice must be recognized. As such, the methodology of applying standards of proof must be considered both before and during the mission.11

Credibility and Conformance to Humanitarian Principles

Meeting a degree of certainty when proposing allegations is just one condition for the monitoring and reporting mission’s credibility overall. As Theo Boutruche writes, fact-finding must be “[t]horough, complete, independent, impartial, and technically competent.”12 These criteria are partially dependent on the availability of financial, human, and physical resources and on the transparency of fact-finding methodology.

Credibility is also dependent on the mission’s conformance to the humanitarian principles of independence, impartiality, and neutrality. Only investigators external to the conflict that are neither influenced by the subjects of the investigation nor by the international institutions that mandated and/or funded the effort should conduct the missions. In order to fulfill the principle of neutrality, the mission’s mandate must call for the investigation into the actions of all parties to the conflict and design the operation accordingly. Likewise, the mission must ensure impartiality of action by giving attention to both the substantiation of true facts and the investigation of potentially false accusations, and remaining critical of potential bias among informants. The 2009 Report of the United Nations Fact-Finding Mission on the Gaza Conflict demonstrates this risk clearly: in response to the report’s condemnation of Israeli actions during the Gaza War, the Israeli government publicly accused the mission of partiality and of spreading false claims, although it had previously refused to cooperate with those conducting the investigation. The U.S. followed suit with its own rejection of the report’s credibility. Overall, the failure to maintain the impartial reputation of the mission is to provide fodder for critics – especially those within the host government – that are already suspicious of the mission’s bias.13

Aid versus Justice

The presence of a monitoring, reporting, or fact-finding mission in the humanitarian space has implications beyond the viability of the mission itself. Whereas humanitarian operators strive to deliver aid, monitors seek to bring about justice. These goals are oftentimes complementary, but at times – and especially when it is human rights law, rather than humanitarian law, being investigated – the monitoring effort may complicate the delivery of aid on the ground.

This tension is starkly evident in the case of Darfur. Humanitarian NGOs frequently engage with belligerents in order to ensure access to populations in need, both in Darfur and elsewhere. If the international NGOs are perceived to be passing on information to monitoring groups – which they were requested to do in 2005 by the ICC – this access will be compromised, especially if those controlling access are being accused of criminal conduct. Even if the NGOs do not pass on information, a mere association with the “international community” that is making the accusations could achieve the same result.

This tension expanded to an even wider scale on March 4, 2009, when the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar al-Bashir on charges of war crimes and crimes against humanity based on material gathered from prior monitoring and reporting missions. The following day, the President expelled 13 international humanitarian non-governmental organizations (NGOs) that were suspected to have collaborated with the ICC and with governments that supported the indictment.14 As shown plainly here, while the objectives of monitoring and reporting missions and humanitarian aid groups may be similar, the politics of one can bring about short- and long-term ramifications for the other.

Conclusion

Monitoring and reporting missions are a core component of international efforts to protect civilians in conflict and post-conflict situations. Given the increasing concern for human security within countries and persistence of human rights and humanitarian law violations, monitoring and reporting will certainly persist in the coming years. The growing number of missions and expansion of UN involvement therein attests to this trend: initiatives such as Resolution 1612 and the establishment of treaty monitoring bodies form the basis for continued future involvement. What is uncertain is whether the international community will come together to bring greater coherency to the as-of-yet ad hoc mission standards, methodologies, and values. These missions are valuable tools already, and could be even more so if given proper international attention.


Additional Resources:

References:

  1. Grace, Rob, and Claude Bruderlein. "On Monitoring, Reporting, and Fact-finding Mechanisms. European Society of International Law (ESIL) Reflections 1.2 (2012).
  2. Wilkinson, Stephen. "Standards of Proof in International Humanitarian and Human Rights Fact-Finding and Inquiry Missions." Geneva Academy of International Humanitarian Law and Human Rights (2012).
  3. Zama Coursen-Neff, Attacks on Education: Monitoring and reporting for prevention, early warning, rapid response and accountability, Protecting Education from Attack: A State-of-the-Art Review, February 10, 2010
  4. All definitions drawn from "Building Effective Monitoring, Reporting, and Fact-Finding Mechanisms"
  5. Boutruche, 116. As an example of c), the UN Fact-Finding Mission on the Gaza Conflict stressed that “the findings do not attempt to identify the individuals responsible for the commission of offences nor do they pretend to reach the standard of proof applicable in criminal trials”.
  6. Boutruche, p. 107
  7. Grace, Rob, and Claude Bruderlein. "On Monitoring, Reporting, and Fact-finding Mechanisms. European Society of International Law (ESIL) Reflections 1.2 (2012).
  8. Ibid.
  9. Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General, Human Rights Council, August 13, 2012.
  10. Boutruche, p. 117.
  11. Wilkinson, Stephen. "Standards of Proof in International Humanitarian and Human Rights Fact-Finding and Inquiry Missions." Geneva Academy of International Humanitarian Law and Human Rights (2012).
  12. Boutruche, Credible Fact-Finding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice
  13. Building effective MRF mechanisms.
  14. IRIN News, SUDAN: NGO expulsion to hit Darfur's displaced.

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