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Fact-Finding by International Nongovernmental Human Rights Organizations Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 1981 Fact-Finding by International Nongovernmental Human Rights Organizations David Weissbrodt University of Minnesota Law School, [email protected] James McCarthy Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation David Weissbrodt and James McCarthy, Fact-Finding by International Nongovernmental Human Rights Organizations, 22 VA. J. INT'L L. 1 (1981), available at https://scholarship.law.umn.edu/faculty_articles/ 281. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Fact-Finding by International Nongovernmental Human Rights Organizations BY DAVID WEISSBRODT* AND JAMES MCCARTHY** TABLE OF CONTENTS PAGE I. NGO FACT-FINDING .............................. 7 A. AN OVERVIEW ............................... 7 B. SHOULD NGOs ADOPT FORMAL FACT-FINDING PROCEDURES? -SOME CONSIDERATIONS ......... 13 II. SOURCES OF INTERNATIONAL FACT-FINDING STANDARDS 17 A. THE HAGUE CONVENTION OF 1907: THE FIRST IN- TERNATIONAL FACT-FINDING STANDARD .......... 17 B. THE UNITED NATIONS FACT-FINDING RULES ..... 19 C. THE INTERNATIONAL LABOR ORGANIZATION FACT- FINDING PROCEDURES ......................... 24 1. SUPERVISION OF THE APPLICATION OF RATI- FIED CONVENTIONS ....................... 24 2. THE GOVERNING BODY COMMITTEE ON FREE- DOM OF ASSOCIATION ..................... 26 3. THE FACT-FINDING AND CONCILIATION COM- MISSION ON FREEDOM OF ASSOCIATION ...... 28 4. STUDIES ................................ 31 D. THE INTER-AMERICAN COMMISSION ON HUMAN R IGHTS ..................................... 31 E. THE EUROPEAN COMMISSION ON HUMAN RIGHTS 34 * Professor of Law, University of Minnesota. ** Attorney, J.D. 1979, University of Minnesota. VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 22:1 F. THE BELGRADE RULES ........................... 35 G. APPROPRIATENESS OF EXISTING FACT-FINDING MODELS TO THE WORK OF AN NGO ............ 38 III. THE FACT-FINDING PROCESS ........................ 41 A. COMPOSITION AND NATURE OF THE FACT-FINDING B ODY ....................................... 42 1. TERMS OF REFERENCE .................... 42 2. MEMBERS ............................... 45 3. FINANCIAL CONSIDERATIONS ............... 49 B. METHODS OF INQUIRY ......................... 51 1. BACKGROUND FACT-FINDING BY SECRETARIATS 51 2. SOURCES OF INFORMATION FOR INQUIRY MIS- SIONS .................................. 55 a. ON-SITE OBSERVATION ............... 58 b. ORAL EVIDENCE ..................... 61 C. WRITTEN AND DOCUMENTARY EVIDENCE 64 C. ADMISSION OF EVIDENCE ...................... 65 D. ENSURING THE RELIABILITY OF EVIDENCE ........ 66 1. PROCEDURES FOR THE TAKING OF EVIDENCE. 67 a. TESTIMONY UNDER OATH OR AFFIRMATION ....................... 67 b. CAREFUL QUESTIONING OF WITNESSES.. 68 2. METHODS OF ASSESSING THE RELIABILITY OF EVIDENCE ................................... 70 a. CORROBORATION ........................ 70 b. USE OF DIRECT EVIDENCE .............. 71 c. ADMISSIONS AGAINST INTEREST ........ 73 d. WITNESS CONDUCT .................... 75 e. BURDEN OF PROOF AND PRODUCTION OF EVIDENCE ............................. 76 E. REPORTS ........................................ 78 1. APPLICABLE LAW ........................... 78 2. RECOMMENDATIONS ......................... 80 3. MINORITY VIEWS ........... ............. 83 F. DISSEMINATION OF REPORTS ...................... 84 IV. CONCLUSION: A SUGGESTED APPROACH TO NGO FACT- FINDIN G ......................................... 88 1981] FACT FINDING BY NGOs There are a considerable number of nongovernmental organiza- tions (NGOs) engaged in overseeing the implementation of human rights by governments throughout the world.1 Working at the in- ternational2 and national levels, s these organizations function as 1. See Cassese, Progressive Transnational Promotion of Human Rights, in Human Rights: Thirty Years After the Universal Declaration 249 (B. Ramcharan ed. 1979); Dahlen, NGO Organizations for Action, 30 Associations Transnationales 8-14 (1978); Forsythe & Wiseberg, Human Rights Protection: A Research Agenda, Universal Human Rights, Oct.-Dec. 1979, at 1, 15-19; Green, NGOs, in Human Rights and World Order 90 (A. Said ed. 1978); Leary, A New Role for Non-governmental Organizations in Human Rights, in UN Law/Fundamental Rights 197 (A. Cassese ed. 1979); Leary, The Implementation of the Human Rights Provi- sions of the Helsinki Final Act, A Preliminary Assessment: 1975-1977, in Human Rights, International Law and the Helsinki Accord 111, 121-27 (T. Buergenthal ed. 1977) [hereinaf- ter cited as Leary, Helsinki Final Act]; Rees, Exercises in Private Diplomacy, in Unofficial Diplomats 111, 126-29 (M. Berman & J. Johnson eds. 1977); Reynolds, Highest Aspirations or Barbarous Acts ... The Explosion in Human Rights Documentation: A Bibliographic Survey, 71 L. Lib. J. 1, 42-45 (1978); Rodley, Monitoring Human Rights Violations in the 1980s, in Enhancing Global Human Rights 119-51 (J. Dominquez, N. Rodley, B. Wood & R. Falk eds. 1979); Scoble & Wiseberg, Human Rights NGOs: Notes Towards Comparative Analysis, 9 Revue des Droits de 'Homme 611 (1976); Shestack, Sisyphus Endures: The In- ternational Human Rights NGO, 24 N.Y.L. Sch. L. Rev. 89 (1978); Skjelsbaek, The Growth of International Nongovernmental Organizations in the Twentieth Century, 25 Int'l Org. 420 (1971), reprinted in Transnational Relations and World Politics 70 (R. Keohane & J. Nye eds. 1972); Weissbrodt, The Role of International Nongovernmental Organizations in the Implementation of Human Rights, 12 Tex. J. Int'l L. 293 (1977); [hereinafter cited as Weiss- brodt, International NGOs]; Wiseberg & Scoble, Monitoring Human Rights Violations: The Role of Nongovernmental Organizations, in Human Rights and American Foreign Policy 179 (D. Kommers & G. Loescher eds. 1979); Note, The Role of Nongovernmental Organizations in Implementing Human Rights in Latin America, 7 Ga. J. Int'l & Comp. L. 476 (1977). See generally International Protection of Human Rights: The Work of International Organiza- tions and the Role of U.S. Foreign Policy: Hearings Before the Subcomm. on International Organizations and Movements of the House Comm. on Foreign Affairs, 93d Cong., 1st Sess. (1974) [hereinafter cited as House Hearings on International Protection of Human Rights]. For current information on human rights activities by nongovernmental organizations, see the Human Rights Internet Newsletter. 2. Over 700 NGOs have accredited status with the U.N. Economic and Social Council. Non-Governmental Organizations in Consultative Status with the Economic and Social Council in 1978, U.N. Doc. E/1978/INF. 7 (1978). 3. See, e.g., National Council of the Churches of Christ in the U.S.A., Human Rights in North America, in 2 Commission of the Churches on International Affairs, Human Rights and Christian Responsibility 80-101 (1974). In the United States, a number of national NGOs have been at the forefront of protecting civil rights and civil liberties, e.g., the Ameri- can Civil Liberties Union, the Center for Constitutional Rights, the National Association for the Advancement of Colored People, the NAACP Legal Defense and Education Fund, the American Jewish Committee, and the Lawyers' Committee for Civil Rights Under Law. For a description of the activities of Amnesty International's national sections, see T. Claudius & F. Stepan, Amnesty International, Portrait Einer Organisation 214-78 (3d ed. 1978). See generally Human Rights Organizations & Periodicals Directory (1977) (lists organizations and agencies active in civil liberties in U.S. and Canada); D. Weissbrodt, The Influence of Interest Groups on the Development of United States Human Rights Policies (unpublished VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 22:1 unofficial ombudsmen safeguarding human rights against govern- mental infringement, using such techniques as diplomatic initia- tives,4 reports,5 public statements,6 efforts to influence the deliber- ations of intergovernmental human rights bodies, campaigns to mobilize public opinion,8 and attempts to affect the foreign policy of some countries with respect to their relations with other coun- tries that regularly commit human rights violations. 9 If these nongovernmental human rights organizations wish to act effectively and responsibly, they must engage in fact-finding. manuscript on file with the authors) [hereinafter cited as D. Weissbrodt, Influence of Inter- est Groups]. 4. See, e.g., International Committee of the Red Cross, Annual Report 1977 (1978). This report includes accounts of diplomatic initiatives in Rhodesia/Zimbabwe, South Africa, and Indochina. Id. at 15-19. 5. See, e.g., Amnesty International, An Amnesty International Report: Political Imprison- ment in the People's Republic of China (1978); A. Cook, South Africa: The Imprisoned Soci- ety (1974) (a publication of the International Defence and Aid Fund); S. Cronje, Equatorial Guinea-The Forgotten Dictatorship (1976)(Research Report No. 2 of the Anti-Slavery So- ciety); International Commission of Jurists, Final Report of Mission to Chile, April 1974, to Study the Legal System and the Protection of Human Rights (1974); J. Mercer, The Sahrawis of Western Sahara (1979) (Minority Rights Group Report No. 40). 6. For example, Amnesty International
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