Perpetrators of serious human rights violations do not always leave
paper trails evidencing their actions but when they do, this can be used to
seek redress for their crimes through a variety of means. For example, they
can support the claims made in reports or other publications to raise public
awareness. The information can also be used to assess whether national
authorities are fulfilling their obligations to respect human rights and to
prevent and investigate alleged abuses. And they could be presented to
criminal investigators as potential evidence to be used in court. Where such
records exist (such as in many of the cases before the International Criminal
Tribunal for the former Yugoslavia), courts and tribunals rely extensively on
documentary evidence when deciding on criminal responsibility for serious
human rights violations.75
Whatever the purpose of the documentation effort, the primary goal is
to create an: (i) accurate; (ii) reliable; and (iii) precise record of events. 76
Judicial mechanisms, for example, require a high and technical standard of
proof to determine accountability. If not properly collected, the gathered
documentation is unlikely to be usable in pursuit of legal redress.
Even if documents are not collected with the intent of using them in
pursuit of legal redress, it is advised to take into account the high standards
of proof that are required by judicial mechanisms while gathering
information. This allows potential use in judicial proceedings should it
come to this, but is also important for non-judicial means. For example, it
allows for well-founded allegations rather than suffer from attacks on its
probative value. Documentary information that is collected and relied upon
needs to be accurate, reliable and credible in order substantiate any
successful attempt at seeking redress. Important concepts used to evaluate
the accuracy, reliability, and credibility of documentary information are their
probative value, source and context.
Probative Value
Judicial mechanisms determine the weight of documents presented in
court based on their probative value. The probative value of a piece of
information is a legal concept used to describe the extent to which a piece of
information tends to prove something material, usually in the context of a
75
Marie Nystedt (Ed.), Christian Axboe Nielsen, Jann F. Kleffner, A Handbook On Assisting International
Criminal Investigations, THE FOLKE BERNADOTTE ACADEMY, 54 (2011).
76
Camille Giffard, THE TORTURE REPORTING HANDBOOK, 30 (2000), available at
http://www.essex.ac.uk/torturehandbook/handbook(english).pdf.
60
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents