PART III - HOW TO DOCUMENT ALLEGATIONS OF UNLAWFUL
KILLINGS
3. EVIDENCE
There is no prescribed list of types of supporting evidence. The
type of evidence you may wish to use will depend very much on the
allegation you are trying to prove and will need to be identified
on a case by case basis. You should try to identify, on the one
hand, evidence that supports the specific case, and on the other,
objective evidence that helps to show how the allegation fits into
the overall picture. It pays to be creative and the possibilities
are vast. Two forms of evidence, medical evidence and witness
evidence, are of particular importance in the case of
investigations into killings and will be addressed in detail, but
examples of other types of evidence include:
- Media reports: Such evidence should be used with some
caution, and would generally be insufficient to initiate a
complaint, but it can be very useful to provide independent
evidence that an incident took place or to provide an indication of
the general situation. Film or video footage of a demonstration,
attack or arrest, may be particularly useful in analysing what
happened in a case and who is responsible for a killing. You may
also find that national or international journalists have done
investigations of their own into controversial matters such as
unlawful killings and may be willing to assist you by sharing
information.
- Expert reports: These could be specially commissioned
medical or forensic reports, ballistics reports, or any other form
of expert testimony or research.
- Official reports and statements: The findings of reports
produced by special domestic inquiries or visits from international
bodies, e.g. a UN Special Rapporteur, can be referred to in order
to provide a more official source of information. Resolutions
adopted by international bodies expressing concern about the
situation in a country can also be used, e.g. resolutions of the UN
Commission on Human Rights, the OAS General Assembly or the
European Parliament. For deportation cases, the UN High
Commissioner for Refugees can provide valuable information. The
United States State Department also produces annual reports on the
human rights situation throughout the world.
- Any evidence of a pattern of violations in the country or
region in question: Such material adds credibility to the
allegation, as it shows that there are precedents for the kind of
behaviour complained of. It is of particular relevance in cases
where the objective is to stop deportation of an individual to a
country where he or she is at risk - while the individual must be
in a position to show that he or she is personally at risk, this
will be made easier if it can be shown that killings are a common
occurrence in the country in question.
Such information is most easily found in NGO reports.
However, the value of such reports will vary according to the
reputation of the organisation in question. Reports that tend to
sensationalise the situation in a country will carry very little
weight, and reports of national NGOs may be treated with some
caution because, although they have a close-up view of the
situation, they may also be perceived as less objective. If these
are the only reports available, they should, of course, be
submitted. Ideally, however, where they exist, reports by large
international NGOs, which are generally respected for their
accuracy and reliability, are the best to opt for - they can then
be supplemented by the reports of smaller and national
NGOs.
- Focused research: If you want to demonstrate a
particular point, patterns could also be identified by specific
research of your own. For example, you could try to show that there
is official tolerance of killings by collecting a significant
number of cases in which no prosecution has been opened; or where
perpetrators have not been found guilty in spite of strong
evidence; or a medical expert might be found who would be willing
to give evidence that he or she has come across many such cases in
the region. You can obtain information for such research from
government reports and statistics, academic research, independent
complaints bodies and investigative journalists.
3.1. Medical evidence
Medical evidence is probably the most important type of evidence
that you can obtain and can add strong support to witness
testimony. Technical procedures for medical personnel carrying out
physical examinations on victims are described in a number of other
specialised manuals and documents and will not be addressed in this
handbook (see Appendix I). However, it is important for
anyone wishing to report allegations of unlawful killings to
understand the role of medical evidence, the difficulties it
raises, and some very basic measures that may be taken to record
and understand such evidence.
Predominantly, you will be dealing with forensic medicine to
establish the causes and origins of injuries, which is a
specialised field. In many countries, the same health professionals
carry out both therapeutic and forensic functions, but where
possible, you should seek the assistance of someone who has
forensic skills and understands the distinction between the two
forms of medicine.
It can assist with:
- Identification of the body
- Cause of death
- Time of death
- Manner of death
- Place of death
- Identification of the killer
Physical examinations will need to be carried out by specialised
medical personnel, not only because of the technical knowledge
required, but also because if the reports are to be of use in
court, it will be necessary to establish that they have been drawn
up and interpreted by qualified professionals.
As a guide the following should be noted:
- Any obvious injury such as bullet holes, stab wounds, swelling,
bruises, cuts, grazes or burns, shape and spread of blood
stains
- Any deformity of shape or posture of the back or limbs
Establish:
- The SITE, SIZE, SHAPE, COLOUR and TYPE (cut, bruise, burn etc.)
of any injury
- Make an estimate of size through comparison with a common
object (but avoid using objects of variable size such as coins or
an orange)
- If there were numerous injuries, indicate them on a body
diagram (See Appendix V)
- Photographs, even amateur ones, can be useful for experts to
examine later. Ideally they should include one picture that makes
the general location of the injuries clear and a closer picture of
each individual site. These should include an indicator of size,
preferably a ruler, but even a common object such as a matchbox
will serve. An indication of the date of the photograph is
important
- Describe appearances as accurately and in as much detail as possible, e.g.
"A purple, raised, circular bruise 4cm in diameter on the outer aspect (outside)
of the right arm, 10cm above the elbow"
- Get the interviewee to demonstrate how they saw the injury
being inflicted
- You should also keep a record of the conditions in which a dead
body was found (e.g. where it was situated, the kind of surface it
was lying on, if the weather was very hot or very cold, if the
weather or the location was particularly damp)
3.2. Witness evidence
Witnesses are likely to be a CRUCIAL source of information. As
the evidence of witnesses is so important, the training of
personnel in interview techniques should form part of the
preparation any NGO makes before attempting to document
allegations. A thorough and complete guide is beyond the scope of
this handbook. However, the following guidelines and suggestions
are designed to be used as an aide memoire and are not intended to
replace full professional training of personnel.
Remember that reports and witness statements can be obtained
from a wide variety of individuals:
- the victim (in the case of death threats)
- the relatives, co-workers and friends of the deceased or
missing person
- eye witnesses to a killing
- witnesses who can tell you something about the history of the
event and/or the scene of the killing (e.g. co-detainees, people
who were present during any part of the incident)
- medical and religious personnel who treated, examined or
attended the deceased
Aims of interviewing a witness:
- Find out everything the witness knows about a case
- Gather sufficient information to evaluate a witness's
reliability and credibility
- Discover any additional witnesses or physical evidence, which
the witness may know of
- Obtain enough background information to enable the witness to
be contacted in future
- Have due regard and respect for the witness and use the
ethical and security principles which underpin the documentation of
human rights violations
3.2.1. General considerations
When conducting an interview, you should bear in mind the
following general considerations:
- Remember and act upon the security and ethical principles
discussed in Part I, Chapter 2 and any policies, which your
organisation has adopted.
- Balance two important requirements: the need to obtain a useful
account and the importance of respecting the needs of the person
being interviewed.
- You are attempting to obtain the most logical, precise and
detailed account possible of the incident, so as to enable you, or
anybody examining the allegation, to understand clearly what
happened, as well as to make it possible to seek verification or
investigation of the information.
- However, it can be very difficult for a person who has already
undergone a traumatic experience to focus on it in detail.
Interviewers should show sensitivity in their questioning and watch
out for signs of tiredness or distress. They should also be aware
of culturally taboo or sensitive areas such as sexual abuse or
rape. Not only may the interview become unpleasant for the person
being interviewed, but it is also possible that the account may
become less reliable if the person is tired or upset.
- A balance must also be struck between the need to obtain as
many details as possible and the importance of not over-directing
or influencing the account. The facts, which you record, should be
those which occurred, not those, which you suggest, might have
occurred.
- Each person interviewed, whether the victim or a relative or
other witness, is an individual with a distinct story. Even if you
are aware of the patterns of violations that are prevalent in your
area in the greatest detail, or you are fairly certain what
happened to a particular victim, you should not assume that each
person will have the same story. You must treat each interview as a
unique record.
- Members of the documentation team might find interviewing
victims and witnesses to be very stressful. They should be prepared
to discuss their responses and feelings amongst themselves, and if
necessary seek professional help.
3.2.2. Witness statements
Don't forget that the same principles of informed consent
discussed in Part I apply to witnesses particularly when you
are taking a written statement. In the case of an informal
discussion with a possible witness, which you do not intend to
cite, it may not be necessary to go into detail, depending on the
circumstances. Remember never to name an individual without his or
her consent. The purpose of witness statements is to help to
understand exactly what took place, and they should, therefore, be
as detailed as possible.
In addition, if you intend to initiate court proceedings at the
national level, you will need a written statement. The statement
should describe, in detail, the relevant facts known to the person.
There is no particular format for such a statement, but it should
be as informative as possible. Such a statement does not need to be
physically written by the person from whom the statement is being
taken - it can also be written, or preferably typed up, by the
interviewer, then read over by or, where the person is illiterate,
read out to the person, who should then approve it. It must,
however, be signed or thumb-printed. If the statement is to be used
in judicial proceedings, it should be signed and dated not only by
the person making the statement, but also by the person taking the
statement and, where possible, a second witness.
A written statement describing the events and signed by the
victim or other witness, particularly those making the allegation,
should be prepared wherever possible in a non-detention context. It
will not be essential in all circumstances, but helps in all
proceedings to reinforce the credibility of the allegation.
Organisations often record such statements by asking the
individual making the report, to fill out a standard questionnaire
setting out the information required. Your organisation may find it
helpful to draft one that is appropriate to your work.
3.2.3. Conducting the interview
You must not put words into the interviewee's mouth.
As a general guide begin with general or open questions
(questions to which the answer is unlimited, e.g. "what did you
see?", "what do you know about the incident?" rather than, "did you
see him fire a gun?" or "did you know X well?"). Such questions may
well invite longwinded answers, but ensuring that the content of
the answers is spontaneous will enable you to evaluate the quality
of the evidence you are being provided with. As the interview
continues you can become increasingly specific and fill in general
points that have been made by the witness.
3.2.3.1. Before you start
Remember to review, in detail, the discussions relating to
informed consent, professional ethics and
security. They are central to the interview process and
there are certain aspects that you will need to explain carefully
to the interviewee.
3.2.3.2. How should you begin the interview?
You should begin by introducing yourself, your organisation,
your objectives, and the possible uses to which the information you
are gathering may be put. If you requested a particular individual
by name, you should explain to that individual how you obtained his
or her name. Make sure that the interviewee has no objection to
note-taking or the use of recording-machines or interpreters.
Address the issue of informed consent and emphasise the
confidentiality of the interview itself, subject to the consent of
the individual to its use. It is also important not to build
unrealistic expectations for the interviewee - you should make sure
that they understand that any potential allegation process may take
time and can yield limited results.
3.2.3.3. Should you keep notes of the interview?
Keeping a detailed record of your interview is important to
ensure accuracy, but you should explain to the individual how these
notes will be used and who will have access to the information
contained in them. There may be some instances when it is more
appropriate to just listen (e.g. in a small police station) and
make your notes immediately afterward.
3.2.3.4. By whom should the interview be conducted?
Interviewing an individual, particularly a victim, about a
horrific and frightening incident is both emotionally and
physically tiring. It is especially difficult where the interviewer
is alone, because this requires an ability to ask questions,
listen, develop a rapport with the interviewee, handle difficult
emotional situations, take notes and watch out for gaps and
inconsistencies all at the same time, an almost impossible task.
Where the circumstances permit, it is best to interview in pairs,
with one person asking the questions and the other taking notes.
Even better is where the two individuals have complementary skills,
e.g. medical and legal expertise. This helps to make sure that no
important points are missed and that the right questions are asked.
In order to avoid confusion for the interviewee and to facilitate
the establishment of a rapport, however, you should make sure that
one of the interviewers has primary responsibility for questioning,
giving the second interviewer an opportunity to intervene towards
the end. The person who is not asking the questions at any
particular moment should be responsible for keeping the notes.
3.2.3.5. Are there any special considerations to keep in mind
when using interpreters?
- Make sure that the interviewee agrees to the use of an
interpreter and is aware that the interpreter has a professional
duty to respect the confidentiality of the interview.
- Be aware that the interpreter may find the content of the
interview difficult to deal with.
- Make sure that the interpreter is aware of the need for
absolute confidentiality - this is particularly important if you
are using non-professional interpreters.
- Be aware that non-professional interpreters may be more easily
drawn into the conversation than professional ones - it is
important to explain to them that their job is to relate the
interviewee's words exactly. If they have also had a personal
experience which they wish to tell you about, let them know that
you can arrange a separate interview with them.
- Avoid using local persons unless absolutely necessary. It can
create mistrust on the part of the interviewee, and may also place
the interpreter at risk. This applies equally to co-detainees,
family members and other relatives, and anyone involved in the
situation in any way. Remember, in addition, that while family
members may be viewed as supportive in certain cultures, in others
it may be highly inappropriate to discuss certain matters in their
presence. For example, it may be culturally taboo for a female
witness to discuss sexual matters in the presence of a male member
of her family. If you or your organisation are of local origin, you
should probably already be aware of any sensitivities - do not
forget to take them into account.
- Remember not to 'switch off' or become detached during
interpretation: even if you are not speaking directly to the
interviewee, it is important to establish a rapport with them and
to show that you are interested in what you are being told.
3.2.3.6. What can you do to make the interviewee feel more at
ease?
Interviews can be extremely intimidating. You may not have much
control over the setting in which the interview takes place, but
even small considerations on your part can help an interviewee to
feel more comfortable.
- Establish as comfortable and private a setting as possible -
preferably alone, unless the interviewee would feel more at ease
with someone else present and that person agrees not to interfere
with the conversation.
- If the interview cannot take place in private, try to ensure at
least that others are out of hearing.
- Be aware that your posture and how you sit in relation to the
interviewee can affect how comfortable they feel - for example, in
a confined space, leaning forward may appear threatening, while
under other circumstances, not doing so may convey a lack of
interest. Some may prefer to sit closer to the interviewer; others
may be very protective of their personal space or shy away from
being touched. Be aware of your surroundings and observe the body
language of the interviewee to gain a sense of what may be most
appropriate in a given case.
- Allow for the possibility of taking breaks.
3.2.3.7. How can you deal with people who are too afraid to
talk?
Some interviews may be conducted in a relatively safe place, but
in many cases the surroundings will not be secure. This is
particularly the case where interviewees are still in the custody
of the authorities. You cannot ensure their safety (see
Part I,
Chapter 2.3.1. for a general consideration of security issues),
but you can take steps not to place individuals at greater risk
than necessary.
- Make sure that individuals have given their informed consent to
the interview (see Part I,
Chapter 2.3.1.).
- Never name individuals who make allegations to the authorities
without their express consent.
- Avoid identifying individuals, even inadvertently, as being
those who have given you information - for example, in a location
with a very small number of detainees, like a police station, you
should make sure to interview all detainees in the same way, and
not to react immediately to allegations in a way which makes it
possible for the authorities to identify the source of information.
If you feel that an issue should be immediately taken up with, for
example, a police station chief, you should first consult with the
interviewees, and should never approach the official without their
consent.
- Make it very clear to interviewees that if they, or any of
their relatives or friends, are subject to intimidation or pressure
of any kind, as a result of the information they have provided,
they should let you know - give them a card with your contact
details and emphasise the importance of contacting you.
3.2.3.8. Are there any special considerations to keep in mind
when conducting interviews in prisons or other places of group
custody?
Awareness of group dynamics and prison structures is important
when choosing how to go about interviewing individuals in such an
environment.
- Where there is a ward or prisoner representative, it can be
helpful to interview and seek the co-operation of this person first
- similarly, there may be a certain hierarchy among persons in
long-term custody which it may be useful to be aware of.
- If interviews must be carried out in a ward or dormitory
environment, it can be helpful to begin with a general group
interview introducing yourself and what you are looking for, but
you should also interview each individual. Even if there are others
in the same area and privacy is not possible, you should try to
talk to each individual one at a time.
3.2.3.9. How can you address the sensitivity of the
subject-matter?
Interviews can be very sensitive and painful, but you can take
steps to minimise the risk of re-traumatisation. For example:
- Show regard and respect for the interviewee in your tone,
language, and attitude
- Be aware of cultural factors and exercise particular
sensitivity towards culturally-taboo subjects.
- Advise the interviewee about the possibility of obtaining
support or a referral
- Listen and allow expression of personal and family
concerns
- Acknowledge pain and distress, but maintain professional
boundaries - do not create unreasonable expectations that you can
respond to their needs
- Do not press interviewees if they become distressed
- Where possible, it may be better to carry out several shorter
interviews rather than one long and intensive one
- Try not to end an interview suddenly without bringing the
conversation around to a less sensitive subject
3.2.3.10. What can you do to maximise the reliability of
information?
You should not put words in the interviewee's mouth. Always
begin with general or open questions (questions to which the answer
is unlimited, e.g. "what did you see?"), and then proceed with
specific or closed questioning to tease out the detail that you
need to make your account reliable and helpful.
- Avoid leading questions - these are questions which already
suggest the answer you are looking for. It is important that the
account given by the interviewee is his/her own, not yours
- Encourage the interviewee to use his or her own words
- Be aware that inconsistencies do not necessarily mean that an
account is false. The interviewee may be confused or have found
your question difficult to understand. You can sometimes resolve
inconsistencies by asking the same question in a different way
- Observe the interviewee carefully - make a note of your
impression of his or her credibility or otherwise
3.2.3.11. Are there any special gender considerations to take
into account when selecting an interviewer or interview team?
There is no strict rule on this point, and it will depend on the
individual interviewee and interviewer. Preferences may be based on
cultural or personal factors. In general, it is better to try to
have a female interviewer present when interviewing a woman,
especially if the account is likely to involve sexual matters. It
is less clear-cut with regard to men - they may also prefer to
speak with a woman about sexual matters, but in certain cultures
this would be unacceptable. Do not forget to take into account the
gender of the interpreter.
3.2.3.12. Are there any special considerations to take into
account when interviewing children?
Your primary goal when interviewing children must be to try not
to do harm. It is very different to interviewing adults, and needs
to be treated as such. Interviewers should have some experience of
working with children or the effects of an interview may be more
detrimental than the potential benefits. Ideally, they should have
both experience and expertise, and if they have never done it
before, it is advisable to run through a mock interview with
another member of the interview team in order to get a feel for the
process. The following should be borne in mind:
- Children may have been forced to witness the murder or
ill-treatment of others, particularly parents or close family
members. You should not underestimate the effects that this may
have on them
- It is important to give children a sense of security and
support during the interview. This may be achieved through the
presence of a parent, relative or guardian, or a counsellor if the
child has been seeing one
- It is most important to observe a child's behaviour during the
interview: their ability to express themselves verbally depends on
their age and stage of development, and behaviour may reveal more
about what happened to the child than his or her words
- Children are particularly sensitive to tiredness and should not
be pressed
- Try to ensure that the child is provided with a support network
after the interview
