PART III - HOW TO DOCUMENT ALLEGATIONS OF UNLAWFUL
The object of this chapter is to provide guidelines on how to
document an allegation of an unlawful killing and the potential
sources of evidence needed to take a case to an international human
rights mechanism. This handbook deals specifically with documenting
and reporting unlawful killings but the basic guidelines could also
be referred to for allegations of torture, arbitrary detention and
other human rights violations that involve deprivation of liberty
and violations of physical integrity.
From the moment you receive the initial report of an allegedly
unlawful killing you will begin to document the case. You should
immediately be alert to the wide range of issues you should try to
explore and basic principles to which you should adhere. The
amount, nature and quality of information you can obtain about a
case will determine whether you can approach an international human
rights mechanism and which mechanism you can use. For example,
where the facts are disputed, regional human rights courts will
require much more detailed evidence in individual cases, than that
needed by a UN Special Rapporteur, in order to communicate with a
state about a case.
Here are some introductory points about the documentation of
unlawful killings to bear in mind as you read this chapter:
- Evidence. All of the human rights procedures, both
domestic and international, are very wary of false allegations,
particularly in sensitive political contexts. The more evidence you
can supply, the fewer doubts they will have. Sometimes the absence
of evidence may support an allegation, e.g. where a state cannot
provide results of an autopsy because it failed to carry one out.
However, the fact that you have asked for an autopsy report and the
state has failed to respond would be evidence in itself and should
- Making the case. Making a strong allegation to an
international human rights mechanism involves ensuring you set out
a logical case based on legal principles and facts that are, as far
as possible, supported by evidence. It is important to be able to
substantiate exactly how you feel the state has ignored or violated
international standards and what evidence you have to support this.
The quality of the argument and the evidence will determine whether
others are convinced by what you are saying. However, this does not
imply that you must have access to lawyers who are experts in human
rights law, but simply, that you should be able to build a case
upon an accurate understanding of the law and principles which
guide international human rights bodies.
- Working methodically and keeping clear and accurate
records. The need for substantiation of a case underlines the
importance of keeping accurate, clear and detailed records of all
of the work done. A piece of information collected near the
beginning of a case may not seem important until later, perhaps
when you are trying to find a missing link. As long as all
information has been recorded, then you have not lost any
potentially crucial evidence.
- Analysing patterns and trends. A full and accurate
investigation, and documentation of individual killings, is crucial
even if your final goal is to compile a report that discusses the
general human rights situation in a country, as this is the only
way to analyse and examine patterns and trends.
- Security. As unlawful killings often take place in
sensitive political contexts and contexts of generalised
repression, anyone having anything to do with the case may be
placing themselves at risk. You may feel you are prepared to take
such risks for yourself but you must bear in mind the implications
of this for your colleagues and the victims and witnesses in the
case. You should consider all of the security implications which
have been highlighted in this handbook (see Part I, Chapter
2.3.1.) and any others which are peculiar to the country
you are in or the case you are dealing with, and take all possible
steps to protect people who are assisting you with the case and the
evidence you are gathering.
- Providing information and protection to witnesses.
Persons who have been subjected to death threats may be in a
position to give first-hand evidence of the incidents in question,
but in cases where the victim has been killed, the allegations may
be made by a relative of the victim, or witnesses who were at the
scene of the killing or disappearances. Witnesses may well be
traumatised by the incident and it is crucial to consider the
ethical issues raised earlier (see Part I, Chapter 2.3.2.)
and any other needs the victims and witnesses may have in
the specific context you are dealing with.
- Building knowledge of national regulatory and legislative
framework. In cases of unlawful killings various issues and
questions must be addressed in the course of documentation and
investigation. These relate to the identity and personal history of
the victim, the cause and manner of death, the history and
circumstances of the death, details of those who are suspected to
be responsible for the killing and the regulatory and legislative
framework surrounding the action that led to the killing and any
subsequent killing. You may not be able to answer all of these
questions or tap all of these sources especially if an arm of the
state (such as the police force) is withholding the information.
However, you will develop a good idea of the information, which
should be available, and the procedures that should have been
followed by the state in question. In such situations you will, at
least, be able to provide the international human rights mechanism
with these details and the mechanisms will themselves be able to
request the information from the accused governments.
In order to provide guidance for documenting allegations of
unlawful killings as human right violations, this chapter will
consider the following:
- Basic aims: There are some basic aims that should be
borne in mind when documenting allegations of human rights
violations. These need to be considered to ensure your allegation
provides accurate, reliable, good quality information.
- Types of evidence: There will be a discussion about the types
and purposes of different types of evidence that may be available
in a case.
- Interview guidance: In many cases, you will need to
interview the person making the allegation and probably
several other witnesses. These may be members of the victim's
family, a witness to the incident or to surrounding circumstances,
some other person wishing to report the incident or, in the case of
threats and attempts to kill, the victim themselves. Suggestions
will be provided as to how to carry out such an interview.
- Investigative framework: This section will deal with the
questions to which you need to seek answers in order to
substantiate an allegation of an unlawful killing.