By Ms. Nancy Chepkwony, IJR 2021 PAREN Fellow
Nancy Chepkwony is a lawyer and human rights advocate with eight years of professional experience in victim rights, transitional justice, international human rights, child rights and international criminal law. She is a legal professional with a Master of Advanced Studies in Transitional Justice, Human Rights and the Rule of Law from the Geneva Academy of International Humanitarian and Human Rights Law; and a Bachelor of Laws, from Moi University; and she also holds a Post-graduate Diploma from the Kenya School of Law.
Documentation is an essential facet of human rights activism and is a prerequisite for achieving unbiased and effective transitional justice mechanisms.[1] While some transitional justice initiatives may only be possible after conflict, for example, reparations, others can begin initiated much earlier. Civil society engagement at every stage of the transitional justice process is therefore very crucial.
Civil society play a critical role in transitional justice, more so documenting human rights violations during conflict or situations of systematic abuse when states are unable or unwilling to document ongoing violations.[2] For example, the Tigray crisis in Ethiopia and governance crisis in Sudan, which has caused severe human rights violations to the citizenry, require diligent and meticulous documentation. It is therefore imperative that civil society document these violations as of when they occur.
Why document?
The purpose of documentation is wide-ranging and contributes significantly to the drive for holistic transitional justice efforts. Documenting violations is a way of evidence collection that will ultimately serve as evidence in international humanitarian, criminal, and human rights justice systems. The evidence collected will be used for prosecution and accountability mechanisms and reparations, truth-seeking, memorialization, and institutional reform efforts.
Although documentation of abuses potentially contributes significantly to the post-conflict rebuilding of societies, the African Union Transitional Justice Policy (AUTJP) does not provide comprehensive standards and guidelines to guide the documentation process.
Challenges
Whereas documentation is critical for any transitional justice efforts, it comes with its challenges. Documenting conflict-related sexual violence is challenging due to the nature of the crime and the stigma associated with sexual and gender-based violence, and also the stigma surrounding the LGBTI+ community, making it difficult for them to come forward to document the abuses.
There are also significant gaps in the lack of a comprehensive regional approach to documentation, leading to inconsistencies in verification standards amongst actors. It also increases the chances of unethical documentation where consent from the respondents is required and approaches taken, subject the witnesses and victims to re-traumatization due to the need to review the experience.
Moreover, with technological innovation, particularly mobile technology, there has been an increase in citizen and unofficial investigations as the world becomes increasingly hyper-connected.[3] Citizen investigations transpire when events are recorded as they occur, photographing crime scenes and recording interviews with victims and witnesses. Whereas citizen documentation contributes to the pool of evidence collection, it also results in unethical documentation where the documenters lack training on best practices. Some of the evidence collected may lack the required legal elements, thus resulting in insufficient or inadmissible evidence in national or international courts and tribunals.
Uncoordinated approaches by different civil society organizations often result in duplication of efforts, consequently confusing and tiring victims and witnesses and potential re-victimization of victims.
Consequently, these gaps highlight the need for comprehensive documentation policy guidelines by the African Union, building upon the framework established by the AUTJP. There is also a need to appreciate and recognize the need for more credible documentation, standardization, and professionalization of documentation efforts.
Conclusion
Documentation is of fundamental importance to transitional justice processes and to contributing towards building peaceful and democratic societies. Civil Society plays a vital role in supporting societies to deal with their past and rebuild trust in its future. The African Union needs to develop standardized templates for evidence collection and documentation, archival practices, and accessibility, quality of documentation concerning legal standards for transitional justice mechanisms.
Designing the templates and guidelines should be comprehensive and grounded on international standards and best practices that are culturally informed and sensitive to local norms. The proposed guidelines will guide collecting and managing information on serious human rights situations for civil societies and individuals who lack professional training in such documentation practices. These standards will set out the ethical principles and documentation guidelines.
The proposed standards should have the following components:
- the “do no harm” principle; [4]
- identification of security risks and threats.
- preservation of crime scenes.
- evidence preservation; and
- (v) confidentiality.
These components would consequently enable unofficial investigators to do no harm and identify security risks and processes without jeopardizing future TJ mechanisms. These guidelines should form part of the AUTJP as an annexure together with documentation templates.
Appropriate measures towards standardization and professionalization of documenting efforts are essential. Standardized guidelines will foster the effective promotion of accountability and peaceful reconciliation, which are essential for rebuilding societies in post-conflict states.
[1] Bickford, L.et al., ‘Documenting Truth,’ International Centre for Transitional Justice, New York.
[2] Arther.P. & Yakinthou, C.(eds), Transitional Justice, International Assistance and Civil Society, Cambridge, 2018 p.9; See also, Guidance Note of the Secretary-General, United Nations approach to Transitional Justice’, accessed 29 October 2019.
[3] McGonigle Leyh, B. “Changing Landscapes in Documentation Efforts: ‘Civil Society Documentation of Serious Human Rights Violations’, (2017) 33, Utrecht Journal of International and European Law, 44.
[4] Office of the High Commissioner of Human Rights, ‘Basic Principles of Human Rights Monitoring’, accessed on 12th November 2021, https://www.ochr.org/Documents/Publications/Chapter02-MHRM.pdf