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Available translations: English العربيّة

Identifying issues and deciding whether to investigate

Graphic: NHRI staff talk with a man, Nepal


  1. Identify what issues the matter raises and decide which issues, if any, will be investigated.
  2. Be able to justify the reasons for the decision.
  3. Determine if there are any underlying systemic issues.

Before the NHRI launches an investigation, it should decide exactly what it is, and what it is not, investigating.

As the NHRI reviews a complaint or a matter that has been brought to its attention, the first thing it should do is identify the human rights issue/s involved.

The NHRI then needs to determine:

  • Do the issues fall within the NHRI's mandate?
  • How will they be framed?
  • What will be investigated?
  • What will not be investigated?
  • What are the gender dimensions of the issues?

A human rights-based tool – such as the 'FAIR Approach' – can help guide this assessment. The gender dimensions raised in the complaint must also be considered.


The FAIR Approach: Applying human rights to practice

The four key steps of the FAIR Approach [1] are:

  • Facts: What is the experience of those involved and what are the important facts to understand?
  • Analyse rights: Develop an analysis of the human rights at stake
  • Identify responsibilities: Identify what needs to be done and who is responsible for doing it
  • Review actions: Make recommendations for action and later recall and evaluate what has happened as a result

[1] Scottish Human Rights Commission; FAIR Approach.


Graphic: An indigenous man presents information about traditional land ownership


GENERAL GUIDELINES FOR SELECTING ISSUES

  • Be specific: Keep the issue/s as focused as possible.
  • Keep an open mind: Good investigators do not rule anything out until they have sufficient evidence to do so.
  • Prioritise: If there is more than one issue apparent or being alleged, identify which is the most important and rank the remaining ones in order.
  • Manage expectations: Clearly set out the scope of the investigation, including any limits on what is being investigated.
  • Consult: Get input from others who may have relevant knowledge when framing the issues to be investigated.

KEY QUESTIONS TO CONSIDER

Once the NHRI has determined the human rights issue/s involved, it must be able to explain why it will investigate the matter. Just as importantly, it should be able to explain why it will not undertake an investigation, if that is the decision made.

The following questions can assist the NHRI as it considers what issues it will investigate and why:

  • Does the NHRI have the jurisdiction/mandate?
  • Does the NHRI have the resources to do the investigation properly and within a reasonable period of time?
  • Would an investigation be an effective use of those resources?
  • Is another body investigating the matter, or should one be?
  • Is an investigation in the public interest?
  • Have there been a number of similar complaints?
  • How old is the issue?
  • Is there a lot at stake?
  • How are women and girls impacted by the issue?
  • How will the decision to investigate, or not investigate, reflect on the NHRI?
  • Is the complaint malicious, frivolous or vexatious?

Graphic: NHRI staff member talks with a woman with a disability, Samoa


IDENTIFYING SYSTEMIC ISSUES

A systemic issue may be the root cause of widespread human rights violations.
In this situation, the NHRI may be able to resolve an individual complaint but if it ignores the underlying issue/s, it will continue to receive similar complaints.

The NHRI should identify any possible systemic issue/s before launching an investigation.

The APF's manual on national inquiries [1] discusses how to choose the issue that will be the subject of the national inquiry, as well as the criteria that should be considered when making that choice, including:

  • How objectively significant the issue is in the country
  • How strong public perception is of the significance of the issue
  • Whether the issue has been the subject of a previous inquires or investigations
  • How much external commitment there is to addressing the issue
  • The potential that exists to build broader, long-term public interest in the issue.

[1] APF, 2019; Manual on Conducting a National Inquiry into Systemic Patterns of Human Rights Violation.



Image credits

  1. NHRI staff talk with a man, Nepal - National Human Rights Commission of Nepal
  2. An indigenous man presents information about traditional land ownership - Human Rights Commission of Malaysia
  3. NHRI staff member talks with a woman with a disability, Samoa - Office of the Ombudsman of Samoa / NHRI