Updated by Faso Aishath
- No two witnesses are the same. Some witnesses need special treatment.
- Some witnesses have been through traumatic situations. Care should be taken to not re-traumatise them.
- NHRIs must plan how best to protect whistleblowers who provide evidence. They must also be open about the extent to which this evidence can be kept confidential.
- Do not believe everything that an expert witness says. Test, question and evaluate.
INTERVIEWING AN EYEWITNESS
Eyewitness evidence will be crucial to many investigations. However, this type of evidence can also be notoriously unreliable, especially when the events under discussion are chaotic or violent.
Recalling distressing events – which investigations conducted by NHRIs often require interviewees to do – can be challenging, particularly when time has passed since the event. As far as possible, descriptions should be obtained while a person’s recollections are still fresh.
A court in the United Kingdom has developed a set of guidelines – “ADVOKATE” – to help assess the value of eyewitness evidence to a specific event. These criteria are worth considering as the interview progresses.
INTERVIEWING AN EXPERT WITNESS
Expert witnesses have scientific, technical, academic or other specialised expertise in a particular area. They can provide NHRIs with valuable information and insights, as well as examples of national or international best practice.
It is vital to the credibility of the NHRI that the expert witness is genuinely neutral. Scrutinise their credentials before engaging them and conduct a thorough background check to be confident about their impartiality.
INTERVIEWING A HOSTILE WITNESSES
In general, a hostile witness is someone who may be negatively impacted by the findings of an investigation or has friends or colleagues who may be negatively impacted.
A hostile witness will do what they can to avoid being interviewed. If they are left with no choice but to be interviewed, they may seek to confuse, mislead, distract, intimidate or bully the investigator.
The investigator should keep to the identified question areas, be persistent and focus on the key issues. They should fight all attempts by the witness to mislead, distract or evade. Further, the investigator must remain professional at all times and not react to provocation by the witness.
INTERVIEWING PEOPLE IN POSITIONS OF POWER
Interviewing a person in a position of power can raise genuine challenges. The first is that such individuals may refuse to be interviewed. However, that should not stop them being asked to attend or, if the NHRI chooses to exercise its legal powers, compelled to attend.
It can be challenging to manage the interview if the person has some real or perceived influence that could have an impact on the investigator or the NHRI. The investigator should, therefore, aim to be respectful but not deferential. They should prepare well and address the key issues related to the investigation.
It should be expected that the interviewee will respect the process. Their level of openness and cooperation should be incorporated into an assessment of the evidence they provide.
WORKING WITH WHISTLEBLOWERS
A “whistleblower” is commonly defined as someone who raises a concern about wrongdoing occurring in an organisation. Usually the person is a member of, or works for, that organisation.
People with “inside” knowledge can be a valuable source of information to human rights investigators. They can assist investigators uncover evidence of which they were not aware or open up new avenues of investigation that had not previously been considered.
However, whistleblowers can place themselves at risk of retaliation and reprisals.
Retaliation can be obvious and brutal, including acts of physical violence. It can also be subtle, such as being reassigned to another role or office, having security clearances removed or being sidelined by colleagues.
The NHRI cannot protect a whistleblower from every different type of retaliation. However, they should investigate instances of retaliation against a whistleblower as a top priority.
Most NHRIs have legislation that includes sanctions for interfering with an investigation or victimising someone who has been involved in or contributed to an investigation. That should be made well known to all relevant parties and the NHRI should not hesitate to use those sanctions where it is required.
How the NHRI treats whistleblowers will reflect on its credibility. If the NHRI develops a reputation for not dealing with them fairly, or not doing what it can to protect them, then the inevitable consequence will be that other whistleblowers will be less likely to come forward.
Witness protection is an issue that NHRIs may need to consider. Some may have to deal with individuals who come forward with vital information about a very serious violation of human rights.
A small number of NHRIs in the Asia Pacific have dedicated witness protection programs, including Thailand, Australia and New Zealand. Most of them are run by police or anti-corruption agencies. While the focus is generally on crime and corruption, some countries, such as Thailand, mention human rights violations in their mandate.
FIND OUT MORE
Chapter x, Undertaking Effective Investigations: A Guide for National Human Rights Institutions (APF, revised 2018)