The contribution of human rights professionals to investigations of possible
violations of international criminal law establishing linkage
The collection and analysis of information relevant to the requisite link between the suspect and the actual perpetration of core
international crimes has gradually emerged as a specialized field within the investigative profession. Methodology appropriate to
such cases has only emerged more recently and it continues to evolve in response to the practical needs of prosecutors,
jurisprudence and the analytical capacity and innovative ability of investigation and prosecution services tasked with core
international crimes cases. Increasingly, investigations management assigns investigators and analysts to either the crime-base or
the linkage component of an investigation.. Where larger investigations are concerned, there is a danger that those assigned to
one or another part of the case will generally have little time to acquaint themselves in any detail with those aspects of the file
which are not the principal focus of their efforts.
The analysis of human rights reports undertaken by the investigative arms of international criminal jurisdictions in the ten years
following the start of the work of the ICTY in 1994 has found, with rare exceptions, that human rights organisations are not yet
particularly adept at the systematic collection, and, in particular, the analysis of information tying an alleged perpetrator to
particular underlying conduct.. This is unsurprising given the specialised nature of such an undertaking, the limited resources
which even the largest human rights organisations can commit to a given case, and the fact that the core man-date of human
rights organisations lies in areas other than the prosecution of individual perpetrators. In light of the still nascent skills of human
rights organisations in the field of linkage-information collection and analysis, human rights professionals may wish to look again
at how their organisations should approach the ‘naming of names’ and whether they should allege individual criminal
responsibility in their public reports and statements as opposed to referring to organisations behind the alleged crimes..
It happens that individuals accused of criminal misconduct in human rights reports are accused either falsely or for the
wrong reasons.. False and otherwise incorrect allegations made against individuals have sometimes had the effect of
giving rise to prosecutions for example, before the ICTR where investigative staff proved ill-equipped to build a proper
linkage case. The responsibility for such errors lies solely with the investigative bodies concerned. However, human
rights organizations should not underestimate the power which they sometimes wield unwittingly in the offices of senior
decision makers in inter-national criminal jurisdictions, including the ICC. It is therefore advised that this power the
power to ‘name and shame’ should be exercised as responsibly as possible.
It is not being suggested here that human rights groups should avoid linkage information collection and analysis. This
would be undesirable and at any rate impossible as crime-base and linkage information is rarely acquired in distinct
bundles. Rather, what is suggested is that where an organisation finds itself in the possession of linkage information, or is
otherwise desirous of collecting it, a number of guidelines should be followed.
(a) Handling documentary materials
An effective linkage case will enable prosecutors, and in turn those sitting in judgement, to determine with clarity the
persons who are criminally liable for the underlying con-duct.. A properly constructed linkage case will likewise enable a
clear determination by a criminal jurisdiction of which persons should not be subjected to further investigation,
indictment, and, or in the alternative, prosecution.. Succinctly stated, effective linkage investigation and analysis are
central to considerations of fairness and due process. The foundation of an effective linkage case is documentation, that
is, documents generated contemporaneously by the organization believed to be behind the underlying conduct as well as
by the person(s) of interest to criminal investigators and analysts.
Personnel employed in the field by human rights organisations routinely come into the possession of contemporaneously
generated documentation, although it does not appear in all or most cases that the organisations systematically seek such
materials. It is recommended that they should set a policy in this regard, determining whether or not they will seek
contemporaneously generated documentation. Human rights organisations that choose consciously to collect
documentation, with no intention of disclosing it to inter-national criminal jurisdictions if asked to do so, will unwittingly
obstruct justice. Organisations which collect such materials, and are prepared to disclose them to international criminal
jurisdictions if asked to do so, but in the meantime mishandle the documents, likewise perform a disservice to justice.
Where organisations are collecting materials and are prepared to disclose them to an internationalised court or tribunal, the ideal
procedure for the physical handling of such materials is fairly straightforward. When materials are acquired, the source of each
individual document should be recorded, along with the date, the place at which it was received and the name of the person
receiving it.. This information need not be completed for each and every document where the source, date, location and name of
the recipient are one and the same.. However, the process should be repeated where any of these variables differ, in particular the
source of the documents. In every case, the relevant information should be recorded on a single piece of paper, the documents
photocopied (carefully, if in a fragile state, and with sufficient attention to the legibility of the copies) and the originals placed in
an evidence bag (any easily sealable plastic bag will suffice) along with the information sheet. The bag ought to be sealed and the
seal signed by the person who received the documents in the first instance. A chain-of-custody sheet should then be appended to
the outside of the bag; the name of the person taking custody, from whom, and the date should be noted on the sheet every time
the evidence bag containing the document(s) changes hands. Finally, the evidence bag should not be opened at any time.. In fact,
there should be no need to do so, as all analysis can be done from the working copies which were made before putting the
originals into the evidence bag.
(b) Interviewing linkage witnesses
Linkage witnesses are those persons asked to speak to the possible connection between a suspected perpetrator and the
underlying conduct of interest in a particular inquiry.. Most commonly, linkage witnesses are persons who served in a military or
political capacity alongside the persons of interest to the inquiry, or alongside suspects and accused persons, where an inquiry has
advanced to the point of a comprehensive investigation or prosecution. Where a particular conflict has been characterised by a
large international presence in and around the conflict zone as was most especially the case during the violent disintegration of
the former Yugoslavia the list of linkage witness will often include persons who served with third parties to the conflict, for
instance, United Nations military observers, journalists and others who during the conflict came into contact with persons later
suspected or accused of violations of international criminal law. Occasion-ally, human rights professionals will have had direct
contact with alleged perpetrators. The phenomenon of the human rights professional as a witness will be discussed separately
below.
For reasons of security, it is not advisable that human rights professionals adopt the approach to linkage witnesses that is often
taken by investigators and analysts employed by internationalised criminal jurisdictions. This is particularly the case where the
potential witnesses are ‘fellow travellers of persons of interest, likely suspects and accused persons. Even where criminal
investigators are not operating with the support of a UN Security Council Chapter VII mandate, the personnel employed by
internationalised criminal jurisdictions can invariably rely upon comprehensive security arrangements to ensure the safety of staff
operating in the field before, during and following any and all interviews with often unsavoury characters. As has been noted
elsewhere in this chapter, no inquiry or prosecution will succeed or fail on the testimony of a single witness or piece of evidence.
Likewise, the efforts of a handful of human rights professionals to secure linkage testimony is today (in contrast to several years
ago) unlikely to influence significantly the opening of an investigation against any given individual, let alone the prosecution of
that individual. Put another way, human rights professionals are advised not to take risks in attempting to meet with certain
categories of linkage witnesses.. With this important consideration in mind, a few remarks concerning the interviewing of linkage
witnesses are offered below.
Types of linkage witnesses: Where they are not openly hostile, the vast majority of link-age witnesses will be reluctant to
deal with those making inquiries of any sort, be they criminal investigators or human rights professionals.. A minority of
linkage witnesses will be friendly, in the main where they are unconnected to any party to the conflict. Ostensible linkage
witnesses with a relationship to a belligerent not under investigation may be well disposed towards those making
inquiries but may generally be of limited information value. Other linkage witnesses will already be incarcerated and
some will have been convicted. Still others will be suspects or inductees in domestic or internationalised proceedings.
Preparing for the interview: The guidelines to be observed by interviewers in preparing for an interview with a linkage
witness are the same as those to be followed in dealing with crime-base witnesses.
The interview: Linkage witnesses should be interviewed with particular attention to the elements and legal requirements
of the relevant crimes and forms of participation. An effective linkage interview cannot be conducted without a carefully
laid-out plan built around an understanding of the wider investigation as well as a comprehensive grasp of the relevant
law. The advantage that a skilled and properly prepared interviewer has in dealing with a linkage witness, in particular
where that witness has agreed to give an interview but is not inclined to cooperate, is that the interview subject will rarely
have a developed understanding of how seemingly innocuous facts can constitute proof of the necessary elements and
legal requirements. That noted, no witness should be underestiated: criminals and their fellow travellers, while frequently
lacking legal expertise, are often possessed of considerable intelligence and psychological gifts; they frequently recognise
when they are being forced into a corner with what may appear to be innocent documentation and questions..
Additionally, linkage witnesses who are possible perpetrators or who otherwise have strong links to suspected
perpetrators may well make statements that are manifestly false. For these and other reasons, it is difficult to advise the
human rights professional on principles that might be followed in each and every instance.. The best advice might be that
the interviewer should be confident in him- or herself at all times and be prepared to confront directly lies wherever they
may arise.. Even self-confessed criminals, where they hold or have held considerable authority, do not seem to like to be
thought of as liars. This can often be exploited to particular gain if untruths are challenged in a forceful manner.
Post-interview procedure: The principles to be observed after an interview are precisely the same as those to be followed
when dealing with crime-base witnesses. It is particularly important that post-interview reports concerning linkage
witnesses are prepared in the third person.
Where a human rights organization has put in place a policy that information might in principle be shared with a criminal
investigative body, it is necessary that the permission of each witness be secured before disclosing this information to a
third party.. At the conclusion of an interview, each witness should be asked whether he or she consents to the disclosure
to criminal investigators of the information that he or she has provided as well as his or her personal details.. It is
imperative that this be done during the interview owing to the difficulties that human rights organizations will frequently
experience in contacting witnesses. The interview: The interviewer(s) must remain in control of the process throughout.
This is not to say that the crime-base witness should be interrupted frequently or otherwise be prevented from speaking
freely. Moments of emotional distress should be handled with tact and patience. Where a crime-base witness is lucid, or,
following a period of distress, able to continue, it is important that the witness speak in the main to the issues of interest
to the interviewer(s), in accordance with the objectives of the interview determined in advance by the interview team.
The methods used to keep a witness focused will vary according to the personalities of the witness and the interviewer(s).
A witness can be kept on track through gentle reminders or by means of feigned displeasure where the witness
continually wanders verbally into territory of no interest to the interviewer(s). However, an interviewer should never
permit genuine impatience with a witness to show through. Rather, where a crime-base wit-ness cannot be controlled, the
interview should be concluded with expressions of thanks. Conversely, where an interview is moving forward according
to plan, it is crucial that evident mistakes of fact be dealt with promptly through gentle cross-examination.. If the witness
persistently makes mistakes of fact, the interview should be abandoned unless there is some compelling reason not to do
so, for example that the interviewers are keen to determine the location of a missing person. Deliberate mistruths must be
addressed rather more firmly.. Before concluding that a deliberate mistruth has been put forward, interviewers must
question themselves, that is, they must consider whether the disputed remark was indeed untruthful, or simply at odds
with existing assumptions of the inter-viewers which remain unproved. Once this process of assessment has been
undertaken, witnesses who are reasonably believed to have stated deliberate mistruths should be afforded a single
opportunity of escape from the falsehood. This escape should be of a face-saving nature. For instance, the interviewer
might show his or her disapproval by means of body language and through his or her tone of voice in posing a question
such as: ‘Is it possible that you are mistaken on this point?’ Where this approach proves unsuccessful, the interview
should be abandoned with expressions of thanks, unless there is a pressing concern which compels the interviewer(s) to
continue.
One of the keys to a successful interview is the ability of the interviewer to hide his or her true feelings, and, where
necessary, to use both sincerity and feigned displeasure. With this in mind, assertions made by a witness that are incorrect
or manifestly untruthful should be addressed promptly by interviewers. On the other hand, testimony that would appear to
be truthful, no matter how damaging to the existing theory of the case, should in every instance be embraced. Vulnerable
crime-base witnesses: It may be argued that human rights organizations have proven themselves to be more skilled in
meeting the needs of vulnerable witnesses than criminal investigative bodies. While the handling of vulnerable witnesses
by criminal investigative services has improved considerably in recent years, there remains room for further
improvement. The starting point for a human rights professional approaching a presumed crime-base witness should be
an assumption that all victims of, and witnesses to, criminal conduct will have experienced some degree of
traumatisation. This awareness will invariably influence the manner in which the witness is interviewed, in particular
during the start of the interview where the interviewer(s) must attempt to determine with some subtlety how best to secure
information from the witness without causing additional psychological harm.
It must likewise be kept in mind that a concern for the psychological well-being of the witness should not, and must not,
translate into a situation where crime-base testimony is afforded informational or evidentiary value commensurate only
with the degree of traumatization suffered by the witness.. The handling of a crime-base witness as a fellow human being
and as a source of information and evidence are distinct challenges that should not intersect in the minds of human rights
professionals. For example, where a crime-base witness claims to have been a victim of torture, an interviewer may wish
to empathize with the witness. There is no harm in this as long as the interviewer does not neglect to verify the claims of
physical abuse, where necessary through a visual examination of any wounds or scars said by the witness to have been
inflicted by others upon his or her body. Requests for a visual inspection must be made tactfully, ideally by persons of the
same sex as the witness but they must nonetheless be made. Likewise, a crime-base witness offering information that he
or she has been sexually assaulted must be interviewed with considerable care lest the witness be revictimised.
Experience has suggested that in such cases it makes little difference whether the interviewer is of the same sex as the
victim.
When interviewing persons who claim to have been sexually assaulted, the interviewer has a professional duty to confirm
to the extent possible the claims of criminal misconduct made by the witness. To this end, any extant medical records
supporting claims of sexual assault must be secured, albeit only with the prior consent of the witness. Additionally, if the
human rights professional wants to collect information from the wit-ness of evidentiary (as opposed to purely
information) quality that might contribute to a subsequent criminal prosecution, careful questioning of the witness will be
necessary in accordance with the elements of sexual violence offences. These lines of questioning are necessarily highly
personal and invasive.. Human rights professionals may therefore not want to question in this manner a person believed to
have been assaulted sexually. However, where there is insufficient prima facie evidence of sexual violence, the
investigative arms of internationalized criminal jurisdictions will be loath to proceed with sexual violence investigations
owing to the difficulty of clearing the high evidentiary hurdles. Practice suggests that investigative priority is given to
crimes with a killing component, which, perhaps paradoxically, are usually easier to prove to the requisite standard than
sexual violence offences.
The best hope for the prosecution of high-ranking perpetrators of sexual violence are of-ten human rights professionals
working with victims of sexual crimes. However, simple advocacy is insufficient. Put another way, demanding
prosecutions is not normally going to give rise to prosecutions; and, where this does occur, such prosecutions may be
hastily assembled and therefore have a limited chance of success. What is required from human rights professionals
seeking prosecutions of sexual crimes is a solid investigative effort by these same human rights professionals.. Criminal
analysts and investigators employed by internationalized criminal jurisdictions might subsequently build upon the
findings of partners in the human rights community. Owing to the fact that the elements of sexual crimes are difficult to
prove and that the collection of the requisite evidence is time consuming, in particular if an investigation is to be sure to
meet the requirements for a charge of rape as a crime against humanity, the prospects for the prosecution of sexual crimes
are generally better with the practical support of de facto partners such as human rights professionals.
Minors: Wherever possible, the taking of testimony from children, or from persons who were under the age of eighteen at
the time of the crimes, should be avoided. There are a number of reasons for this.. Suffice it to say that crime-base
witnesses who were minors at the time of the crimes are particularly vulnerable to effective cross-examination by skilled
defence counsel. Where a decision is nonetheless taken to interview persons who remain under the age of eighteen at the
time of the scheduled interview, permission must in every instance be secured from a parent or guardian. This parent or
guardian should in turn be present during the interview, although the adult in question should not be permitted by the
interviewer(s) to assist the witness with his or her answers. The presence of a person additional to the witness represents
an exception to the preferred mode of interviewing witnesses, that is, an adult witness should be alone with the
interviewer(s) and interpreter. When an interview with a child commences, the interviewer(s) should not lose sight of the
fact that the child-witness has been, and will continue to be, extremely vulnerable to suggestions by authority figures such
as human rights professionals.
‘Tricks of the trade’: Experienced interviewers have a handful of ‘tricks’ in the interview repertoire which are of use in
ensuring the flow of a crime-base interview in accordance with the objectives of the interviewers. Some of these methods
are used by most, if not all, interviewers. For instance, crime-base witnesses should be made to feel physically and
psychologically at ease. One of the ways to do this is to seat the witness as comfortably as possible near the entrance of
the room, without anybody between the door and the wit-ness. It will also be observed that humour can be a very useful
tool in any interview, no matter how grim the subject matter. Additionally, breaks should not be prescheduled, al-though
crime-base witnesses should be afforded breaks during an interview, in particular upon request. Refreshments – at
minimum, water – should be available at all times; food and other refreshments should be offered during longer sessions.
Finally, it is often help-ful to start interviews involving both crime-base and linkage witnesses with open-ended questions
rather than with queries requiring a ‘yes’ or ‘no’ answer. These and other steps should be taken to make the witness feel a
partner in a process, rather than a tool being manipulated by the interviewer(s).
Post-interview procedure: Immediately following each interview, the interview team should conduct a brief review of
what went well during the interview and where improvements might be made in the future. This exercise can be
undertaken in as little as five minutes, even if and particularly if another witness is waiting to be interviewed. An
investigative report detailing the information provided by the witness, along with his or her personal information, should
be prepared within twenty-four hours following the interview and ideally the same day. Human rights professionals
should prepare this report using the third person and witnesses should not be asked to sign the interview reports. There
are several reasons for this. A witness should be formally where statements are re-corded by human rights professionals
in the third person and not signed by the witness. In the event that these interview records are turned over by a human
rights organization to an internationalized court or tribunal, they are, as such, likely to be afforded little, if any, formal
evidentiary weight by either the defence or the prosecution, principally because the records will not have been signed.
However, the same interview records, if carefully prepared, might constitute an invaluable analytical and investigative
tool, whether of an inculpatory or exculpatory nature. They may guide the fact- and truth-finding process in a decisive
manner.
These suggestions for human rights professionals involved in the interviewing of crime-base witnesses are by no means
exhaustive. At any rate, the object of this chapter is not to transform human rights monitors and protectors into criminal
analysts and investigators. These fields of endeavor are distinct and ought to remain so. However, both professions have a
shared interest in the effective questioning of crime-base witnesses, and their distinct objectives should not give rise to
conflicting approaches to the collection of crime-base information and evidence.
