A Review of Professors Alston and Satterthwaite’s Presentation at ASIL Panel on “The Future of Human Rights Fact-finding”
April 8, 2013

By Hope Lewis

Will the human rights movement benefit from innovation, technological improvements, and social media, or will these developments imply new challenges for human rights monitoring and analysis instead?

According to a recent ASIL panel on “The Future of Human Rights Fact-Finding,” the answer, of course, is “both.”

The stimulating panel attracted a standing-room only audience.  Today’s international human rights lawyers and advocates still seek the Holy Grail of accurate, reliable, and convincing data on past violations or on ways to prevent emerging threats. Experts and non-experts alike are both intrigued and wary about the implications of these rapidly developing methodologies.

Discussion centered on current developments.  Among the methodologies described:

– spatial mapping;

– developments in human rights forensics;

– the growing use of human rights indicators;

– crowd-sourcing data gathered from cellphones, handheld video cameras, and social media.

Philip G. Alston, John Norton Pomeroy Professor at New York University School of Law and an experienced participant in many fact-finding missions, moderated the panel and lively discussion session.  He began by noting that the broad human rights community has generally been slow to adopt new fact-finding methods.  The panel addressed the need to talk about such developments and their implications in real-world contexts.

The first panelist, Margaret (Meg) L. Satterthwaite, Professor of Clinical Law and Director, Root-Tilden-Kern Program, NYU School of Law, is completing a forthcoming book on the development of human rights measurement and evaluation.  She began with a historical overview, discussing the classic “naming and shaming” and “embarrassment effect” strategies used by many NGOs to shed light on violations through international accountability mechanisms or political pressure.  She noted that eyewitness and survivor interviews, as well as various forms of forensics have been at the core of such strategies.

Still, the traditional approaches involve significant ethical and practical dilemmas, including limits on eyewitness testimony and physical restrictions on access to investigation sites or witnesses.

Satterthwaite laid the groundwork for the panel’s discussion of the increasing systematization, professionalization, and innovation in fact-finding, presentation, and evaluation in recent years. As an example, Satterthwaite noted recent efforts to use crowd-sourcing methodology to track sexual violence in Syria.  “Big data” (large coverage information gathered by governments, financial and development institutions, etc.) can be used to confirm or develop the human rights data.  Significantly, she also stressed the importance of using technological advances to monitor the implementation of economic and social rights in context.

Satterthwaite argued that human rights monitors have the responsibility to use data in ethical and human context and therefore sees a continuing need for individual eyewitness testimony and other traditional methods.

Brian Root, Ph.D., U.S. Program Quantitative Analyst, Human Rights Watch, commented on the opportunities for lawyers to use quantitative methods for human rights monitoring and advocacy.  Mr. Root noted that Human Rights Data Analysis Group (HRDAG) is well-known for developing quantitative estimates of casualties in Syria, for example.

Despite the obvious advantages of having quotable information about violations in a conflict zone, Root sounded several cautionary notes about the need for careful interpretation of the overall data in context: the difficulty of translating data for laypersons and the general public; tendencies to see data as the substantive answer to a political, legal, or social question; and pressures in human rights contexts to develop data prematurely or to apply limited data too broadly.

Root advised human rights advocates to

– Define purposes and research questions clearly;

– Use appropriate statistical methods relevant to the end-user’s question and needs;

– Avoid over- or under-inclusive samples.

He described ways Human Rights Watch uses data otherwise available through administrative agencies to reveal inconsistencies or gaps that expose human rights violations.  For example, immigration detention transfer records may flag arbitrary transfers; police department records may reveal failure to investigate sexual abuse when compared with hospital records.

Bradley Samuels, Founding Partner, Situ Studio www.situstudio demonstrated examples of “forensics visualization,” using a computer model to illustrate three-dimensional images of the aftermath of a bombing.

Mr. Samuels discussed the “architectural forensics” project being hosted by Goldsmith College.  Architects use computerized 3D visualization tools to inform human rights and humanitarian analysis. Among the case studies discussed were 1) the use satellite mapping and shipping data to investigate a claim that other ships and helicopters from other countries had failed to provide assistance to a ship in which 66 refugees died; and 2) the use of architectural forensics to visualize the civilian impact (such as house fires) of using phosphorus in heavily-populated urban settings.

Steven R. Ratner, Bruno Simma Collegiate Professor of Law, at University of Michigan Law School, advised advocates to think creatively about using alternatives to traditional “fact-finding” missions.  He argued that, rather than concerns about technique, the central barrier to effective fact-finding is a growing political backlash among states and other powerful actors against accepting the legitimacy of the process, mechanisms, and outcomes.

In spite of such rejections, Ratner argued that there are other ways to accomplish similar goals.  For example, he participated in a 2010-11 three-person Panel of Experts on Accountability in Sri Lanka, appointed to advise Secretary-General Ban Ki-moon after the civil war.  Ratner identified at least three important advantages of the Advisory Panel approach:

Despite the drawbacks (i.e., lack of territorial access, internal and external condemnations of the Panel’s legitimacy), Ratner argued that it laid the groundwork for subsequent UN action and Sri Lankan responses.

He emphasized that “credibility” involves more than technical methods; it often requires the support of key actors.  NGOs and other human rights advocates should include long-term goals in strategic analysis, such as justice for victims, national reconciliation, and strategies to prevent recurrence of atrocities through structural change.

The Future?

One is left with the recognition that there is tremendous opportunity in these developing approaches—reliable data for building awareness and political will not least among them.  On the other hand, one need not be a technophobe or conspiracy theorist to be wary of the power of these tools and the privacy questions they raise.

Sample Questions from the Floor:

An Unasked Question

Time was short, but I would have asked the following:

Hope Lewis is Professor of Law & Chair, Global Law Committee, at Northeastern University School of Law. She thanks Northeastern University School of Law student Sari M. Long, ’13, for her excellent research assistance.

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