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Trial Monitoring: A Reference Manual for Practitioners
human rights imperatives. These can be discussed through examples of how managers would expect monitors to react in different hypothetical situations.
Finally, many programmes do not consider the principle of non-intervention applicable in their interactions with non-judicial actors, such as the police or personnel at detention centres. As an example, monitors would be encouraged to suggest in a straightforward manner to the director of a
detention facility the need for separate accommodation for juveniles, as set out in international human rights standards.
8.1.2 Duty of impartiality
Closely related to the duty of non-intervention is the duty of monitoring personnel to carry out their
responsibilities in an objective and impartial manner, as well as to avoid the appearance of doing
otherwise. Carrying out activities impartially requires that monitors observe and examine equally
the conduct of all actors involved, without showing any personal preference toward one side over
another or toward a specific outcome in a case. Similarly, legal analysts and managers carry out their
activities impartially by ensuring that challenges are identified, reported and followed up through
advocacy, regardless of who may bear responsibility for them. This helps ensure that a programme’s
findings and conclusions are accurate. Externally, the appearance of impartiality helps provide assurance that the monitoring programme is not biased regarding individual cases and that no single
category of actors is targeted for criticism.
In the courtroom, the duty of impartiality suggests that monitors should sit apart from the prosecution and defence if physically possible, so as to avoid the appearance of partiality.
To the extent that the monitoring programme allows interaction with legal actors, impartiality dictates that, if there is contact with one adversary in a case, there should be similar contact with the
other. This helps establish that the monitor is not taking sides in gathering information. In contacting the different sides, however, monitors must not share information on ongoing proceedings, as
this would engage them in the judicial process.
Gathering information and reporting in an objective manner is of particular importance in fields of
law where public opinion or the general circumstances tend to favour one side of the argument. This
can be the case for cases of trafficking in human beings and terrorism or for those involving human
rights defenders or journalists, where there is often a prevailing prosecutorial bias. Likewise, in war
crimes proceedings or other politically charged cases, there may be a tendency of bias in favour of
one or the other side in the process.
The need for impartiality also extends to the manner in which reports are drafted. If only negative
points and drawbacks are reported, justice officials may perceive the monitoring programme to be
biased towards offering criticism, rather than presenting a balanced view of overall challenges and
achievements. In such instances, a programme may endeavour to appease the authorities by reflecting both positive and negative practices almost symmetrically in reports. Other programmes operate on the assumption that the spirit of human rights work is to flesh out problems and encourage
their resolution, rather than praising the judiciary for basically doing its work. Somewhere in between there lies yet another approach: highlighting challenges observed, but also noting any particularly good practices, with a view to encouraging the authorities to follow the latter examples.
Reports may also underscore instances where the organization’s recommendations have been implemented. Each programme needs to consider which approach will be adopted.
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