Facing the Facts: Developing Standards for Human Rights NGOs


Book Launch for Best Practices for Human Rights and Humanitarian NGO Fact-Finding
with Martinus Nijhoff Publishers
Mishkenot Sha’ananim
Konrad Adenauer Conference Center
Jerusalem, Israel


Introductory remarks
Anne Herzberg, Legal Advisor, NGO Monitor
Alan Stephens, Clemens Nathan Research Centre

Keynote Address 
Prof. Françoise J. Hampson, Dept. of Law, University of Essex; Member, fact-finding missions to former Yugoslavia and Lebanon; Former member, UN Sub-Commission on the Promotion and Protection of Human Rights

Panel Discussion
Chair:  Prof. Gerald M. Steinberg, President, NGO Monitor; Professor of Political Science, Bar Ilan University [Remarks]

Dr. Rephael H. Ben-Ari, Former Legal Advisor, Embassy of Israel in The Hague; Bar Ilan University [Remarks]
Adv. Sigall Horovitz, Hebrew University of Jerusalem; Former Legal Officer, Int’l Criminal Tribunal for Rwanda; Special Court for Sierra Leone
Col. Liron Libman, Former Head, International Law Department, Israel Defense Forces Military Advocate General’s Corps [Remarks]
Prof. Robbie Sabel, Former Legal Advisor, Israel Ministry of Foreign Affairs; Professor of Law, Hebrew University of Jerusalem

Speaker Bios

Françoise Hampson is a Professor in the Department of Law and Human Rights Centre of the University of Essex. Her teaching and research focuses principally on the law of armed conflict and human rights law. She was a member of the Steering Committee and Group of Experts for the ICRC Customary Law Study and frequently participates in ICRC workshops and seminars as an independent expert. She teaches on English and French courses and workshops at the International Institute of Humanitarian Law, San Remo.

She has participated in fact-finding involving the law of armed conflict for the International League of Human Rights (former Yugoslavia) and the International Commission of Jurists (Lebanon 2006). She was a member of the UN Sub-Commission on the Promotion and Protection of Human Rights from 1998-2007. She has represented many applicants before the European Commission and Court of Human Rights. The cases include a large number arising out of the situation in south-east Turkey in the 1990s, which involved Commission fact-finding hearings. Françoise Hampson and Kevin Boyle were named Human Rights Lawyer of the Year in 1998 for their work on the Kurdish cases before the European Court of Human Rights. She was also one of the applicants’ representatives in the case of Bankovic v. Belgium and 16 members of NATO.

Dr. Rephael H. Ben-Ari, Ph.D (Bar-Ilan University); LL.M (Public International Law) (Leiden University, Holland); LL.B (Tel-Aviv University); Former Legal Advisor to the Israel Embassy in The Hague; 2011-2012 Global Research Fellow & Neil MacCormick Fellow in Legal Theory, Hauser Global Law School Program, New York University School of Law; Author of ‘The Normative Position of International Non-Governmental Organizations Under International Law – An Analytical Framework’ (Martinus Nijhoff Publishers, 2012); Teaches public and criminal international law.

Anne Herzberg is a graduate of Oberlin College and Columbia University Law School where she was named a James Kent Scholar and a Harlan Fiske Stone Scholar.  Prior to joining NGO Monitor, she worked as a litigation associate in New York for the law firms Winston & Strawn and Shearman & Sterling. As part of her pro bono work as an associate, Anne assisted asylum seekers and performed work for the International Criminal Tribunal for Rwanda.  She has published on the International Criminal Tribunal for Yugoslavia. Her opeds have appeared in the Wall Street Journal, Ha’aretz, the Jerusalem Post, Ynet, and Jewish Ideas Daily.

Sigall Horovitz is currently completing a PhD in Law (specializing in Transitional Justice) at the Hebrew University of Jerusalem. She is additionally employed by the Law Department of the Hebrew University as a research fellow in two EU-funded research projects: the Project on Effective International Adjudication (http://www.effective-intl-adjudication.org/) and the DOMAC Project (http://www.domac.is/). Sigall also heads the Transitional Justice Project of the Hebrew University’s Minerva Center for Human Rights.

For three years Sigall worked as a legal adviser to the President of the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania. She previously served for a year with the Office of the Prosecutor at the Special Court for Sierra Leone. Sigall completed her LL.M (with honors) at Columbia University in 2003.

Col. Liron A. Libman is a lawyer who has recently completed a career of 23 years in the Military Advocate General’s (MAG) unit of the Israel Defense Forces (IDF). In his last position, Mr. Libman served as Head of the International Law Department during 2009-2011. Within that capacity he was the senior officer responsible for legal advice in Law of War issues involving the IDF. One of the major challenges during that period was engaging with different fact-finding reports about the Gaza operation and the Gaza flotilla incident by Israeli and international bodies including NGOs, notably, the Goldstone Report, published in September 2009, the Turkel public commission, and the UN Palmer panel.

Mr. Libman’s previous military roles include Chief Military Prosecutor in 2005-2008. In that position he was responsible, among other things, for criminal prosecution in cases of misconduct during operation or against Palestinian civilians involving IDF soldiers. Many of the complaints assessed came from NGOs, and extensive working relations existed with these organizations.

Mr. Libman earned his LL.B. degree from Bar- Ilan University in 1989. He completed his graduate studies and received an LL.M. degree from the Hebrew University in Jerusalem (magna cum laude) in 1997.  He also participated in various military courses, including the IDF course for Command and Staff (1999). Mr. Libman is a member of the Israeli Bar since 1991 and a qualified mediator.

Prof. Robbie Sabel, Professor of International Law, Faculty of Law Hebrew University, Jerusalem

Former: Counselor for Political Affairs Israel Embassy Washington;  The Legal Adviser Israel Ministry of Foreign Affairs;  Foreign Ministry’s Deputy Director General for Arms Control; and Disarmament; Head of Israel Delegation, Taba arbitration with Egypt; Member of delegation, peace talks with Egypt, Jordan and Palestinians. Arbitrator on the Appeals Panel of the International Commission on Holocaust Era Insurance Claims. Personal rank of Ambassador granted by then Foreign Minister Shimon Peres.

Publications include: Procedure in International Conferences, (Cambridge University Press, 2nd edition 2006); International Law , (Faculty of Law, The Hebrew University Jerusalem, 2nd edition 2010).

Prof. Gerald Steinberg is president of NGO Monitor and professor of Political Studies at Bar Ilan University. His research interests include international relations, Middle East diplomacy and security, the politics of human rights and non-governmental organizations (NGOs), Israeli politics and arms control.

He works with a number of international organizations (NATO, UN University, OSCE, SIPRI); participates in track-two workshops and in the Inter-parliamentary Coalition for Combating Antisemitism ICCA; and is the founder of the Program on Conflict Management and Negotiation at Bar Ilan University.

Recent academic publications include “NGOs, Human Rights, and Political Warfare in the Arab-Israel Conflict”; “Europe’s Failed Middle East Policies The UN, the ICJ and the Separation Barrier: War by Other Means” (Israel Law Review); and Best Practices for Human Rights and Humanitarian NGOs, (co-author), Nijhoff, Leiden, 2012. He is also completing research examining the credibility of human rights organizations during the 2006 Lebanon war, under the auspices of the Israel Science Foundation.

His op-ed columns have been published in Wall St. Journal (Europe), Financial Times, Ha’aretz, International Herald Tribune, Jerusalem Post, and other publications. He has appeared as a commentator on the BBC, CBC. CNN, and NPR.

Alan Stephens is Director of Research of the Clemens Nathan Research Centre, London and acts as a Consultant to several international publishing companies and to the Institute for the Study of Global Antisemitism and Policy, New York.  From 1984 until his retirement in 2002, he was Publisher and later Publishing Director of Kluwer Law International/Martinus Nijhoff Publishers, the global leaders in Human Rights Law publishing. He read law at University College London, and was called to the Bar at the Middle Temple. He served on the Board of Editors of the Netherlands Yearbook of International Law (1975-84) and was Founding Editor of Religion and Human Rights An International Journal. He has given papers at the Henry Dunant Institute, George Washington University, the Australian Institute of Jewish Affairs, NATO and elsewhere, and has been a panellist at the Annual Meeting of the American Society of International Law. In recent years he has initiated and led research and educational projects with, inter alia, the International Bar Association, the Raoul Wallenberg Institute and the Hague Institute for the Internationalisation of Law, most notably the project which produced the Lund-London Guidelines on International Human Rights Fact-Finding Visits and Reports, 2009, designed to improve the quality and fairness of Human Rights reporting by NGOs.

Speakers Remarks

Dr. Rephael H. Ben-Ari, Former Legal Advisor, Embassy of Israel in The Hague; Bar Ilan University

Dear friends and colleagues,

I am delighted to be here with you today, sharing what I believe to be a significant step in INGO-related scholarship. I would like to say a few words about the topics we are discussing in the context of the ongoing discourse on the normative position – that is the legal status – of INGOs under international law. I believe this perspective can shed light on the importance of focusing contemporary research on the themes discussed in the book, both academically and practically.

“It would be difficult to imagine an intellectually more stimulating subject [than the legal status of INGOs]. It has its roots in a long and varied history and leads on to the most topical and concrete problems of world structure and organization. The task is no less than to identify the future foundations and principles of the relations, in international life, between private enterprises and the action of public authorities in the form of states and intergovernmental organizations. But however fascinating the subject may be, any solution to the problem is, as it always was, extremely difficult to find, not only because it implies a network of technical problems very hard to conceive and equally hard to implement and coordinate, but above all because any change in the existing legal structures has political implications, whether we like it or not, which cannot be overlooked by any of the parties concerned.” [1]

These are not my words, but those of Professor Merle, from the University of Paris, who reported in 1983 to the Parliamentary Assembly of the Council of Europe on the complexities involved in considering the legal status of INGOs. At that time, it was generally acknowledged that the issue had to be examined from the point of view of re-shaping the structure and organization of the international community, and that the rise of the so-called ‘transnational private sector’, characterized by spontaneity and variety, constituted a genuine challenge to the association of nation-states. 30 years later, the topic still remains as fascinating and stimulating, and as difficult to solve, legally and moreover politically, as it was then.

Nevertheless, this August, the newly established Non-State Actors Committee of the International Law Association (ILA) will reconvene to promote its current project that deals with the position of NSAs – and INGOs in particular – under international law. Eventually, as the Committee’s 2010 report revealed, [2] this project will aim to propose a normative framework to facilitate the acquisition of international legal personality by INGOs, so that they can become genuine subjects of international law, and de jure participants in international law processes, side by side with nation-states (and intergovernmental organizations) – the original members of the international legal order. Probably very few of the ILA Committee’s current members are aware of the fact that more than a century ago, in 1910, the ILA itself (together with the Union of International Associations and the Institute of International Law), was the first to consider the very same undertaking, suggesting the adoption, through a diplomatic convention, of a supra-national status for the benefit of INGOs. That started a 100-year sequence of attempts by various international forums and institutions, both inter-governmental and non-governmental, to ameliorate a formal status for INGOs. Clearly, within our confined time framework, it is impossible to review the many proposals and reports issued along this sequence. It is sufficient to note that, along the way, numerous obstacles have arisen, while hardly any solutions have been found. After all, the problem is very complex and serious indeed: how, and to what extent, do we translate international socio-political reality (that is, the growing impact and burgeoning numbers of INGOs) into international legal arrangements? In other words, how do we turn international ‘actors’ into ‘subjects of international law’? What would be a good enough reason for such a difficult endeavor (the number of such actors? their impact? their accountability)?

Prominent among the difficult questions that have arisen in the past – and remained unresolved until this very day – were those of registration, selection, and supervision of eligible organizations. In later years, they reappeared in the form of issues regarding the definition of INGOs, and more recently, their responsibility and accountability. Proven to be politically and legally insoluble hurdles, we still do not have an agreed-upon definition of the international non-governmental entity.

Today, against the background of heated discussions about the future of ‘international governance’, there is renewed interest in INGOs’ legal position. In the ‘age of INGOs’ and ‘globalization’, some international lawyers are encouraged by the hasty invention of models and notions that endeavor to explain the complexities of ‘global interdependence’. Being dissatisfied with the fact that INGOs do not fit neatly into existing legal rubrics and doctrines, these scholars might be anxious to apply new concepts, borrowed heavily from the fields of political theory, political economy and, in particular, international relations, in order to suggest transformative initiatives – or downright normative revolutions – that would officially incorporate the INGO actor into the international legal order. In this context, legal status is seemingly required to facilitate INGOs’ cross-border activities by the provision of rights, privileges and immunities. This quest is occasionally based on a call for the establishment of a more fair international legal order that would reflect the position and relevance of all significant international actors, including INGOs, thereby legitimizing their voice and ensuring their participation. In most cases, as with the ILA current initiative, this quest reflects an optimistic view of an angelic community of INGOs, collegially networking to achieve laudable goals and rendering morally merited services for the global public good. This view rests on the assumption that INGOs’ involvement makes international decision-making more effective; that INGOs provide significant democratic alternatives to existing channels of political representation, and do not act out of self-interest; and that – unlike governments, international institutions, and their officials – they are civilized, in agreement, and immune to corruption. [3] However, these assumptions are far from being empirically verified, and are therefore still based more on belief than on knowledge. Furthermore, even the meaning of ideas and notions that provide intellectual backing for those assumptions – such as ‘global governance’, ‘global civil society’, and de-territorializing ‘processes of globalization’ – frequently employed as paradigmatic tools in the formation of analytical frameworks for the consideration of INGOs’ position – is unresolved, bearing varying interpretations; certainly, these concepts do not portray an intellectually coherent picture or represent any straightforward truisms.

INGOs’ legitimacy must therefore be earned on an individual, case-by-case basis. It cannot be assumed, a priori, due to the existence of a networking, representative ‘Global Civil Society’, which, beyond an intellectual construct for conveying legitimacy, does not exist in the form of a cross-border, cross-sectoral, overarching unity that promotes international relations and the rule of law. Certainly, such a notion and related assumptions would not feature any serious normative scheme for the articulation of INGOs’ legal status. Furthermore, as was realized in the very early initiatives towards a formal status for INGOs, and as has become more and more apparent in the last few decades, by and large, INGOs should be valued as – sometimes very powerful – political, self-interested, actors. Some leading INGOs, participation of which was initially based on the provision of their expertise and proficiency, repeatedly prioritize issues such as campaigning and advocacy, instead of relief and charity. Some are accused of not denouncing violence, or even of supporting terrorism. International lawyers must therefore realize that INGOs can be either good or bad; they can potentially facilitate international cooperation and the rule of law, but they can also obstruct them. These very acknowledgements, simple, albeit fundamental, underline initiatives such as the Lund-London Guidelines. [4] Moreover, they are indirectly endorsed by leading INGOs themselves, in seeking to establish frameworks such as the INGOs Accountability Charter. [5]

These are exactly the reasons why focusing research on INGOs’ fact-finding and reporting capacities may suggest a new, alternative channel for the progression of the discourse on the normative position of INGOs. In fact, it may prove to be a turning point, even a breakthrough, academically, as well as practically, after nearly a 100 years that yielded hardly any progress in that respect. It seems that we have reached the point where discussion of the normative status of INGOs at large, has become too abstract, based on beliefs more than on facts; the academic discourse in this regard is at a standstill, confined by scholars’ predetermined conceptions of the international legal order, as being either universal or statist. The study of INGOs’ human rights and humanitarian fact-finding and reporting, on the other hand, bypasses the complexities of the general debate on legal status of INGOs; it is not based on any a priori broad normative legitimacy assumptions, but on output and regulatory legitimacy considerations. [6] It singles out a certain function, which can be related to and evaluated on a case-by-case scientific basis, instead of considering a certain unresolved movement as a whole, which cannot be reduced to concrete components, and may bear conflicting historic and normative interpretations. It is not focused on defining the prototypical entity, which performs a certain activity, but on outlining and regulating the activity itself. It is founded on careful practical observations, underlining a sector-based, functional approach for the consideration of the position of certain INGOs, defined by the quality of their actual output, and not by any self-stated mission. Altogether, such an approach acknowledges the need to respect INGOs’ independence and integrity, due to their distinctive position and expertise, taking into account their unique features, as being self-appointed and officially unaccountable; however, it also recognizes their general need to gain credibility and legitimacy. All in all, by distinguishing the question of function from that of status, the way is opened for the construction of an objective, and systematic theory regarding what INGOs do and how they do it.

Thank you.

[1] See M. Merle, Report on International Non-Governmental Organizations and their Legal Status, Colloquy on the Role of International Non-Governmental Organizations in Contemporary Society, Parliamentary Assembly of the Council of Europe (Strasburg, Feb. 1983), available on: http://www.uia.org/legal/home.php.
[2] See First Report of the Committee on Non-State Actors, International Law Association (The Hague Conference, 2010), available on www.ila-hq.org.
[3] See, for example, discussion in H. Holmén, M. Jirström, ‘Look Who’s Talking!’ Second Thoughts about NGOs as Representing Civil Society, Journal of Asian and African Studies, Vol. 44(4), (2009), p. 429.
[4] See Guidelines on International Human Rights Fact-Finding Visits and Reports (The ‘Lund-London Guidelines’), Inaugurated 01 June, 2009, International Bar Association & Raoul Wallenberg Institute of Human Rights and Humanitarian Law, available on: http://www.factfindingguidelines.org/.
[5] See INGO Accountability Charter 2006, available on: http://www.ingoaccountabilitycharter.org.
[6] See, for example, discussion in R. Ossewarde, A. Nijhof, L. Heyse, Dynamics of NGO Legitimacy: How Organizing Betrays Core Missions of INGOs, Public Administrative and Development Journal, Vol. 28, (2008), p. 42.

Col. Liron Libman, Former Head, International Law Department, Israel Defense Forces Military Advocate General’s Corps 

Good evening and thank you for the invitation and for the kind introduction.

I was asked to speak, as a practitioner, on my experience with fact finding by NGOs. The comments I am about to share with you come from three different perspectives I have on this subject:

1. The perspective as the former head of the international law department in the IDF, engaging with many NGOs, international and Israeli, around the Gaza operation (“cast lead”) and the flotilla incident, as well as other contexts.

2. The perspective of an ex criminal prosecutor in the MAG, since I was deputy chief military prosecutor, at the beginning of what some call “the second Intifada”; and later a military advocate to the central command, responsible for many forces operating in Palestinians populated areas; and finally, as chief military prosecutor. As part of my mission, I had to assess information indicating the need for a criminal investigation, give legal support for ongoing investigations, decide or recommend decisions as to the proper legal measures to be taken after the investigations were completed, and litigate or supervise litigation when cases were brought to court. In all of these phases, I engaged a lot with NGOs.

3. The third angle is that of a civilian: more than 6 months after finishing my last job in the military, I feel I have the benefit of some reflection.

One basic fact that NGO people often rightfully emphasized in our interaction was that they have no duty to be fact finders or to prove a case to us. It is law enforcement agencies in general and the military law enforcement system when soldiers are involved, which have a duty to investigate suspicion of criminal offences, including offences violating IHL or IHRL.

However, having no duty does not mean you have no responsibility, when you voluntarily choose to search for the truth.

I think you have, as an NGO active in this field, a primary obligation not to obstruct official investigation with your actions.

For example, going public with an allegation, detailing victims’ testimonies gathered, before allowing responsible authorities a chance to confront the potential violators with the details of the allegation, may give the suspects time to prepare for the investigation, individually and collectively, in a way that would prevent the investigation from getting to the truth.

I want to mention some practical problems I encountered when engaging NGOs in the field of fact-finding:

A certain NGO used to send us complaints about misconduct of soldiers, naming victims or witnesses willing to testify. With time, we discovered that this organization actually takes detailed affidavits from witnesses, while including only a short summary of it in the complaints. When we asked for the affidavits, the answer was “no”. The reason given was a concern that small discrepancies between testimonies given during the official investigation and the detailed affidavits will be used as an excuse to close the case for lack of reliability of the witness. This may reflect a problem of trust. As an experienced prosecutor, I can say that small, immaterial discrepancies are to be expected, when dealing with human memory. In fact, a witness who can repeat a very lengthy statement, word by word, raises a suspicion of being trained to memorize a fabricated story. Of course, to withhold evidence from an ongoing criminal investigation is a criminal offence by itself. Nevertheless, we tried to reach an understanding with that organization without using the power of the law.

Another common problem I faced concerns edited video footage. Nowadays, small and cheap video cameras and cellular phones with cameras are everywhere. They can produce valuable evidence of an incident, such that does not rely on human bias or memory faults. On the other hand, nothing can lie as convincingly as video footage, edited to omit uncomfortable information and insert voices and visuals from other places and times to create fiction rather than reliable evidence. This is why the rules of evidence, not just in Israel, are very clear: the footage should be unedited and the photographer should be available to testify about it, or else, it cannot be used in court. Unfortunately, we had many problems with NGOs producing problematic footage. In many cases, the problem is that these materials come from local field workers, which have a political bias and cannot be considered objective observers.

There are also examples of cooperation in sensitive circumstances:  I remember one case, where we were called to investigate a case where a Palestinian minor was shot to death during a rock-throwing incident with soldiers. An NGO claimed it had the details of another minor, participating in the incident who could testify to the fact that the soldiers were not in a life-threatening situation justifying live fire. But, we were told, the witness was afraid to be indicted for participating in the stone-throwing on the soldiers and would testify only with a promise of immunity. After careful consideration, we were willing to give the witness partial immunity from criminal charges for throwing stones, if no bodily harm has occurred and subject to full cooperation in the investigation. Eventually, the youngster gave testimony but there was not enough evidence to prove misconduct.

An area of often disagreement with NGOs was their attitudes towards our right to respond to allegations contained in reports before publication.  In this field, practice varied: one Israeli NGO had an appreciated policy to include in its reports the detailed response of the IDF, as given by the IDF, even if it took a few pages at the end of the publication. In other cases, I felt that in requesting to meet with us the NGO was just giving lip service to the principal of hearing all sides. In one case I remember, an international NGO asked to meet representatives of the military prosecution to discuss investigations regarding allegations of misconduct during the Gaza operation. Although that organization did not have a good record of impartiality, we decided to meet with them. The meeting was long and many answers were given about the status of the investigations. At the end of the meeting, the participants from our side were told the meeting was very helpful and informative and were under the clear impression that the information provided would be reflected in the report. Three days later the report was published in NY. The meeting with our people was mentioned just to strengthen the conclusion that the investigations were not satisfactory. The publication created the impression that some questions were unanswered, when in fact they were not even presented at the meeting. More importantly: it was clear that considering the quantity of information provided by us at the meeting, the NGO had not taken enough time to assess that information. Obviously, that meeting was designed for the record only, with no intention of seriously considering the possibility that our investigations actually comply with international standards.

I think an essential starting point for every fact-finding mission is to clearly define the purpose of the mission

One possible purpose is to inquire whether there is some concern deserving further investigation – to turn on the red light. I think this is a legitimate aim. Moreover, in many cases were resources, time and access to the field the mission has are limited, this is the only realistic and achievable purpose.

A more presumptuous goal is to come to conclusions as to criminal responsibility or the need to bring certain people to justice, whether identified or not. To reach a reliable conclusion of this type, you must conduct a comprehensive investigation, have the means and expertise to do so, and have access and cooperation of all parties involved. Most important: you have to have sufficient time. In reality, I think NGOs rarely have this ability.

In any case, it is important that the language of the report give a fair reflection of the nature of the findings. Judicial language, used in judgments and verdicts, is out of place if all you have are partial findings, taken just from one side of the conflict. Indeed, this was one of the flaws in the Goldstone report. The head of the mission explained later, in an interview to “Forward” daily newspaper  that the findings were tentative, conditional and, quote: “If this was a court of law, there would have been nothing proven”, but the language of the report itself set an unequivocal judgment of war crimes committed.

However, what is the reason that NGOs often fail by making unsubstantiated determinations, where caution is in place? I think the key to understanding this phenomenon is the influence of the media on NGOs. NGOs want to attract the media’s attention. It is easier to do this with dramatic stories that end with an exclamation mark, not a question mark.

There is a “risk” to NGOs trying to be fair and even-handed. Let me illustrate this with a true story: one of the Israeli NGOs published an annual report. This report acknowledged the fact that there was an improvement in the condition of human rights in the territories, compared to the previous year: less Palestinian civilians killed in military operations, less administrative detainees held and less military checkpoints and roadblocks. Of course, the report was still critical of Israeli actions in many fields, but at least in Israeli media, can you guess what the headline was? Of course, “an improvement in the condition of human rights in the territories, says NGO “. Because “man bites dog” is news. I was told that one of the workers of this NGO said they would not repeat such a mistake.

I hope this is not really the lesson learned, because the price of short-term gains and media attention can be long-term loss of credibility, when eventually the truth is revealed. Next time this organization will cry for attention, it may be treated like the boy who cried “wolf”.

Fact-finding, of course, is not done just by NGOs and even not just by international and external bodies. It is done inside the military, too. Criminal investigations by the MP and Boards of Inquiry have detailed rules and protocols as to the collection and evaluation of material. However, there is a third form of fact-finding: command investigations or operational debriefings. This is a form of fact finding that is supposed to be quick, done by commanders in the chain of command or by other military experts, close in time and place to the incident. It is mainly a tool to improve military performance and draw lessons for the future from an operation, but can be used, and is used, among other materials, to create a primary factual picture as a basis for a decision if a criminal investigation is needed. Although the law does give some important tools to this fact-finding mechanism (mainly, a privilege against disclosure in court, designed to encourage soldiers to cooperate, without fear of self-incrimination) it does not prescribe detailed investigative procedures. Inside the military I Often heard arguments against regulating command investigations: it will damage the flexibility needed, slow down the process, and similar arguments, identical to those heard from NGO as to their lack of detailed procedures. I think they are equally not convincing. Some improvements were made in the military during the years, but there is still a lot to be done. Of course, some NGOs, which find fault with command investigations, fail to notice the same methodological flaws in their own fact-finding missions.

One should acknowledge that even a fair and professional fact finding process does not guarantee the truth. I saw from close up, how even an official criminal investigation, with all its powers and tools, sometimes fails in the judicial test: some of the witnesses turn out to be unreliable, defense experts find flaws in the physical evidence and new evidence comes to light and changes the picture.  Furthermore, I will risk being considered a heretic and say, that even a professional court, with all the benefits of subpoena powers, all its experience, and its chance to directly assess witnesses under cross-examination, still can be wrong sometimes, acquit the guilty and condemn the innocent. NGOs should not be held to higher standards, even when eventually, their findings are refuted, as long as they apply a fair and professional fact finding mechanism and describe their findings without inflammatory language.

NGOs can have a positive role, even from the viewpoint of law enforcement authorities. They can often bridge over the lack of trust potential witnesses may have in law enforcement authorities of the other side, bring their complaint before the authorities, convince them to testify and help them in the process.

The real question NGOs should ask themselves is, are they really interested in the truth, whatever it is, or are they just looking for facts to support their prejudgment. If there is a will there is a way, and probably several reasonable ways they can choose from. I think this book can be of assistance.

Thank you very much.