Human Rights Professionals and the Criminal
Investigation and Prosecution of Core International
Crimes
Introduction
Internationalized criminal courts and tribunals1 re-emerged from a long post-World War hiatus in the mid-1990s.. The creation of
the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), and in particular the emergence of
the International Criminal Court (ICC), owed much to the tireless efforts of human rights organizations to end impunity for the
most serious core international crimes. The crucial role played by the human rights community in the creation of these and other
internationalized criminal jurisdictions has naturally given rise to willingness on the part of some human rights professionals to
contribute to the work of these institutions, most notably the ICC. Concomitantly, the role of civil society in internationalized
criminal justice is gradually being subjected to more critical scrutiny3 This critical discourse will probably continue. While the
relationship between human rights organizations and the investigative arms of internationalized criminal jurisdictions is not
without challenges, this paper recognizes that there are a number of shared interests between the two and that these shared
interests can lead on a case-by-case basis to partnerships between professionals working for internationalized criminal-
investigative and prosecution services with human rights professionals.
Any partnership of this nature will necessarily rest upon several foundations. The most important of these is the fact that
internationalized criminal jurisdictions are invariably established only after the underlying conduct of interest to a given
internationalized juris-diction has been perpetrated. For instance, the Extraordinary Chambers in the Courts of Cambodia
(ECCC) were still waiting to hear their first case at the end of 2007 when this paper was written – some thirty years after
the alleged perpetrators of the mass killings in Cambodia had been forced from power.. Where an internationalized
criminal jurisdiction is already in place when the underlying conduct occurs, and this body has the legal authority to make
inquiries concerning alleged criminal conduct, various factors will work against the timely start of such an inquiry – if it
is made at all. The Prosecutor of the ICC, to take the most obvious example, has neither the legal authority nor a
sufficient number of investigators to respond promptly to all claims that core international crimes have been perpetrated.
The result is that the investigative arms of the ICC and other internationalized criminal jurisdictions find themselves
almost without exception in situations where they are dependent at the start of the inquiry on the work undertaken in the
field by fact-finders (such as human rights monitors) employed by intergovernmental organizations (IGOs), non-
governmental organizations (NGOs), and, in some cases, by governmental agencies.
Viewed purely from the perspective of the requirements of criminal investigations and prosecutions, the efforts of human
rights professionals have proved to be somewhat uneven since the re-emergence of internationalized criminal justice in
the mid-1990s. Put another way, investigators and analysts employed by internationalized courts and tribunals who have
been tasked with the examination of allegations of core international crimes have often found that the monitoring and
reporting efforts of human rights professionals do not do enough to advance methodologically sound criminal inquiries
beyond an initial examination of the alleged underlying conduct. There are exceptions to this rule as well as good reasons
to expect that the work of human rights professionals will not conform to the narrow professional requirements of
criminal investigators and analysts. One important consideration in this respect is the fact that staff employed by
international criminal jurisdictions are ethically bound to search for inculpatory as well as exculpatory evidence from the
start of an inquiry.. At the ICC, this is a statutory obligation placed upon the Office of the Prosecutor.. In seeking
evidence the investigative and analytical staff must remain mindful at all times of the applicable standard of proof which
determines the outcome of criminal proceedings (such as ‘beyond reasonable doubt’). For their part, hu-man rights
organizations are more concerned with issues of monitoring and protection through advocacy; they seek to change
conduct through the provision of information geared towards greater respect for human rights, the rule of law, good
governance and democracy. The reporting efforts of human rights professionals are judged largely in the court of public
opinion – which requires a lower ‘standard of proof’. These and other differences aside, human rights organizations on
the one hand, and the investigative arms of internationalized criminal jurisdictions on the other, invariably share one goal:
the desire to see those responsible for core international crimes answer to the allegations made against them in a legal
system, when the inculpatory evidence is sufficient. This shared objective serves as a starting point of any cooperation
between human rights professionals and the investigative service of any given internationalized criminal jurisdiction.
Human rights workers and their organizations can be particularly well placed to make important contributions to the
investigation and analysis of core international crimes, and, in so doing, have much to teach internationalized criminal-
investigative services. In particular, human rights organizations frequently attract not only highly motivated staff, but also
persons with outstanding academic records. These factors often translate into a strong capacity on the part of individual
human rights professionals as well as their or-generations to identify and present in clear terms complex fact patterns that
are found in domestic as well as foreign conflict zones. Moreover, human rights professionals are typically capable of
working quickly and under pressure. This characteristic of the profession is one of the most important prerequisites to
adopting and maintaining an operational posture.. At the same time, the ability to work quickly and under pressure
generates added value in the execution of a number of key investigative tasks, among them the examination of witnesses
to core international crimes.. Human rights workers also tend to be open to systematic approaches to fact-finding as well
as fact-analysis, and to considerations of methodology and cost efficiency. In these respects, human rights professionals
have proven themselves to be more skilled than policemen seconded to internationalized courts and tribunals from violent
crime investigative units situated in national criminal justice systems. To this should be added the fact that a number of
human rights organizations have developed comprehensive international networks through which professional staff can
exercise their fact-finding and -analysis skills in numerous countries around the world. Apart from the general insights
that such experience can offer into the phenomenon of unlawful victimization during conflicts, the experience possessed
by many human rights professionals frequently facilitates a useful comparative analysis of fact patterns in the
organization and perpetration of core international crimes.
The contribution of human rights professionals to investigations of
possible core international crimes – building the crime base
As mentioned earlier, human rights monitors are frequently present in the field where ostensible criminal acts have been
perpetrated.. Conversely, it is very rarely the case that investigators and analysts employed by international criminal
jurisdictions find them-selves at the scenes of alleged crimes until well after – and sometimes years after – the fact..
Human rights professionals, whether they are employed by an IGO, NGO or govern-mental agency, are therefore often in
a position to record valuable information concern-ing a prima facie offence immediately after the fact.. This ability to
compile information in situ can serve at least two useful ends: (1) the interests of the human rights organisation which is
concerned with monitoring and protection through advocacy; and, months and sometimes years later, (2) those of an
internationalised court or tribunal making inquiries concerning the underlying conduct in question..
It is not the core function of human rights professionals to assist internationalised crimi-nal jurisdictions with the
establishment of a given crime base.. Some human rights profes-sionals and the organisations to which they belong will
understandably not wish to do so, for instance, in order to maintain some perception of neutrality vis-à-vis the belligerent
parties in a given conflict.. However, where a human rights organisation is willing to contemplate the provision of
assistance to an ongoing or (possible) future investigation, adjustments to prevailing human rights monitoring modus
operandi may be required. A human rights organisation that is prepared to make such adjustments may be better
positioned to support internationalized criminal investigations; and, at the same time, these adjustments will probably
improve the quality of the monitoring and protection efforts of the human rights organisation. Such changes can be
effected without the com-mitment by hard-pressed human rights organisations of additional human and material
resources. Elements of the recommended modus operandi to be followed by a human rights organisation when
documenting alleged core international crimes is the focus in the following..
(a) Documenting a possible crime scene
Human rights professionals will at times find themselves present at prima facie crime scenes shortly after the perpetration of core
international crimes.. Of particular interest to international criminal jurisdictions are situations in which there has been a manifest
loss of life.. This brief guide cannot cover all the steps that human rights monitors might take when finding themselves called
upon to respond to such a situation.. However, cognizant of the fact that the time available for the inspection of a possible crime
scene is often limited by ongoing military activity, a number of suggestions are put forward below.
Secure the ostensible crime scene: Where possible – for example, if an international armed force is present to assist – the area
should be marked with mine or crime-scene tape, if available, and persons who are not involved in the examination of the crime
scene should be prevented from entering the marked area while the process of examination is underway.. One person should act
as overall coordinator of the site examination and assign tasks (see below) to his or her colleagues.. This same person should later
prepare a report (see below).
Identify precisely the location of the crime scene: This will ideally be done through the logging of GPS coordinates and by hand
on a topographic map.. The two distinct means of location identification are used in the event that one or the other later proves to
have been wrong.. The information concerning location should be noted in the final report of the examination team (see below)
and any marked map must be signed, dated and pre-served with the remainder of the evidentiary record (see below).
Prepare a sketch of the crime scene: Any sketch should constitute an overhead view. It should be prepared as far as possible to
scale.. The rough scale should be indicated on the sketch, as should the magnetic north and the key features appearing on the
sketch (such as buildings, dwellings, outbuildings, human remains, and so forth).. The sketch should be completed at the scene
and signed as well as dated by the person who prepared it in the event that the sketch is later entered into evidence in criminal
proceedings.. Once the completed sketch has been photocopied so that a working copy is available, the original should be
handled as would be a piece of physical evidence (see below).
Videotape the crime scene: A video camera, if available, serves a purpose similar to that of a crime-scene sketch; that is, the
video camera is an excellent tool for use in reproduc-ing the layout of a crime scene, despite the limitations of videotaping in
capturing depth and dimension.. The individual wielding the camera should use the audio feature of the camera to indicate, as he
or she films, what image is being captured by the camera at any given time.. It is exceedingly important that the time and date
indicator on the camera is properly set prior to the start of filming and that the camera itself is in working order (that is, that the
batteries are sufficiently charged, a fresh cassette has been inserted, and so forth).. Owing to the fact that technical means of
recording frequently fail, a hand-drawn sketch should be prepared (see above) in the event that the video record later proves to be
insufficient or becomes lost.. Upon leaving the crime scene, any and all recordings should be copied for working purposes; with
the original tapes handled as would be pieces of physical evidence.
Photograph the crime scene: Still photographs are the best means of recording important details at a crime scene.
Photographs should be logged in a notebook as they are taken. The log should note the name of the photographer, the date
and location at which each picture was taken, and its subject. A 35mm camera is preferable; where possible, both a digital
and a non-digital camera might be used. Still photography can be used to create an additional overview of the crime
scene, and in particular to capture details which might assist subsequent determinations of the cause(s) of death of the
victim(s). Bodies should be photographed as a whole, followed by detailed shots of any wounds to the bodies. A ruler or a
like instrument of linear measurement should be laid alongside any wounds prior to the wounds being photographed.
Once a body and the wounds on the portions of the body visible to observers when the body was found have been
photographed, the body might be turned and all other wounds captured in the same manner. The process of turning bodies
should be undertaken with care: bodies should not be disturbed where there is any possibility that improvised explosive
devices have been rigged to the human remains, and persons handling remains should ensure that they are properly
protected from the transmission of illness from the remains to the handler. Finally, it will be noted that where blood-
splatters appear, most commonly along walls, these patterns should be photographed. The body (or bodies) from whom
the blood appears to have emanated should be captured in a photograph along with the blood-splatter pattern(s) prior to
any disturbance of the position of the remains. The photographic log should note whether the position of a body was
disturbed prior to the taking of any given photograph.
Handling physical evidence: Where possible, physical evidence which appears to relate to the ostensible crime should be
removed from the scene when those present determine that the non-collection of the item(s) will result in their loss to any
future investigation.. This refers, for instance, to shell casings and other materials which have a prima facie connec-tion
to the death of the victim(s). Weapons and other items that belonged to the possible perpetrators will rarely be found.
Where these items do appear, they should be seized. All items to be removed should be photographed before removal.
Their location relevant to the bodies and any structures must likewise be recorded on the crime-scene sketch and/ or by
the video and photographic records. Physical evidence should be put into individual bags (that is, ‘evidence bags’), as it is
collected. A slip of paper should be put into the bag along with the item, describing it, the date upon which it was
collected, where it was collected, and the person who collected it (who should be the same person placing the item in the
bag). This paper should be signed by the collector and then the bag sealed by whatever means are available where
evidence tape is not at hand. The seal should be signed and dated with indelible marker, with the signature running across
the seal onto the bag itself. A piece of paper should then be attached to the outside of the bag. Whenever the evidence bag
passes from the custody of one person to another, the name of the person taking custody of the item, and the date upon
which custody was taken from whom, should be clearly recorded.. The person surrendering custody of the bag and the
person taking custody of the bag should sign alongside their names. The bag itself should not under any circumstances be
opened after it has been sealed. Ideally, one person in the organization should act as something akin to a ‘property officer’
responsible for all physical evidence. Any videotapes made at the crime scene should be handled as physical evidence.
The name of the video graphed should be written on a piece of paper, along with his or her signature, and sealed inside
the evidence bag together with the videotape(s), after working copies of the latter have been made.. The same procedure
should be followed for photographs.
Reporting on the crime-scene visit: The human rights monitor in overall charge of the re-cording and collection effort
should take notes throughout the process, recording among other key facts: who was present at the crime scene; at what
time the team arrived at the crime scene; which actions were taken by the team at the crime scene; which items were
removed from the crime scene; the time at which the team vacated the crime scene and the condition in which the crime
scene was left when the team departed (for example, if the bodies were left where they had been found).. It is particularly
important to note whether the crime scene appeared to have been disturbed (for example, by relatives of the victims)
before the arrival of the examination team. All notes made at the crime scene, along with the final report prepared after
the visit, should be preserved as evidence, although these materials do not need to be placed in evidence bags. Care
should be taken that the person who was in overall authority approves, signs and dates the final report. Potential witnesses
to the crime who are identified at the crime scene itself should have their full names and other identifying details (such as
dates of birth, identification card details, places of residence, mobile telephone numbers, and so forth – if possessed by or
otherwise known to the witness) recorded on a piece of paper which should likewise be preserved with the remainder of
the evidentiary record.
Finally, crime scenes can be dangerous on numerous grounds such as ongoing military activity in an area or owing to the
presence of booby traps and other unexploded ordnance. Human rights professionals should not under any circumstances
risk their personal safety in an effort to record a crime scene with an eye to future criminal prosecutions. In contrast to
proceedings before domestic courts, the outcome of proceedings before international criminal courts and tribunals rarely
rests upon physical evidence. Indeed, in the majority of international criminal proceedings, little if any physical evidence
relating to alleged crime scenes constitutes part of the trial record. In the main, evidence collected at a crime scene
constitutes what might be termed a desirable, but not an essential, component of an investigation into alleged violations of
international criminal law. In the circumstances, there is no reason to risk life or limb in the collection of crime-scene
evidence.
(b) Interviewing witnesses to an alleged crime
Where criminal investigators do not meet minimal requirements in conducting interviews with crime-base witnesses, there is a
risk that persons will be unjustly accused of crimes or that persons rightly suspected are not held to account for certain crimes
which might otherwise have been proved. Where human rights monitors are concerned, the ramifications of poorly conducted
crime-base witness interviews are likewise negative: (1) the human rights organization might be brought into disrepute should the
insufficient efforts come to light; (2) persons in positions of authority – whether it be within an armed force or an
internationalized court or tribunal – might choose to act in part upon the basis of a human rights report that is founded upon
incorrect or incomplete information; (3) the records of poorly conducted interviews disclosed to internationalized criminal
jurisdictions are of neither analytical nor evidentiary value; and (4) in the hands of skilled defense counsel, the record of a poorly
conducted crime-base witness interview can actually serve to undermine good faith efforts to bring suspected perpetrators to
justice. The latter is particularly the case where the information collected and recorded during a poorly conducted interview
contradicts statements taken properly by others, be they criminal investigators or human rights professionals.
It has been observed elsewhere in this chapter that many of the core objectives of human rights organisations and
international criminal jurisdictions are distinct.. The goal of immediate protection for victims and other vulnerable
persons may at times compel human rights organisations with limited time and resources at their disposal to value the
quantity of witness testimony over the quality of individual interviews. However, it would seem that where time and
resources permit, the standards which both professions might strive to achieve in their dealings with crime-base witnesses
are broadly similar. More to the point, the proper recording of crime-base testimony by human rights professionals serves
simultaneously the longer term goals of human rights organisations – which must of course be the priority for these
organisations – as well as the objectives of the inves-tigative arms of internationalised criminal jurisdictions. With this in
mind, a number of suggestions for the effective interviewing of crime-base witnesses are developed below.
Challenges to be overcome: Human rights professionals are in the main sensitive to the fact that crime-base witnesses are
very often traumatised as well as frightened of repris-als.. Additionally, crime-base witnesses will frequently be fearful of
persons who arrive to interview them and witnesses must be put at ease.. At the same time, it must be kept in mind that
the possible traumatisation of any given witness, and whatever fears he or she may have, frequently combine to give rise
to mistakes of fact, and/or misrepresentations of the truth which are rooted in an ultimately unhelpful desire to assist the
interviewer in identifying those responsible for the suffering that the witness either saw or experienced.. It is therefore
important for interviewers to avoid any further traumatising of a witness while keeping in mind that only information
which is believed to be factually correct should be solicited and accepted from crime-base witnesses.
Preparing for the interview: The person(s) conducting an interview must study the con-tents of the investigative file
(which should be opened at the start of an inquiry) before proceeding to interview crime-base witnesses. Only when each
interviewer is familiar with all extant information can he or she properly identify potential witnesses, determine the order
in which these witnesses should be interviewed, and, during any given interview, grasp to the fullest possible extent the
potential relevance of a given crime-base witness.. The interview team – that is, the interviewer(s) and the interpreter (if
an interpreter is re-quired) – must be selected with care. Moreover, the objective(s) of each interview must be determined
beforehand, in part so that the witness is not confused during the interview by indecision and frequent changes of
direction on the part of the interviewer(s). Likewise, the recording method(s) to be employed (audio, video, handwriting)
must be determined, the functionality of any technical equipment confirmed, and responsibility for the record-ing process
assigned. If interpretation services are required, the sole function performed by the interpreter should be interpretation.
Interpreters should not be used as note-takers.. As a general rule, interviews are conducted by two persons – one
interviewer asking the questions, and both taking notes, with the secondary interviewer acting as the princi-pal note-taker
and recording-equipment operator.. Whether the second interviewer might also ask questions is a matter to be worked out
between the interviewers.
Tactical planning: It has been noted that the fear and traumatisation experienced by many crime-base witnesses will
frequently give rise to mistakes of fact as well as misrep-resentations of the truth. These likelihoods must be anticipated
and prepared for. The fear felt by many crime-base witnesses while interacting with an interviewer can often be reduced
through a clear demonstration by the interviewer that he or she is who he or she claims to be.. This might be done through
the provision of proper identification, or better yet, by means of a reference from a third party trusted by both the
interviewer and the witness.
The further traumatization of a crime-base witness is a more difficult possibility against which to prepare. It is the practice of the
Investigations Division of the ICC to have a psychologist prescreens witnesses who are believed to be at particular risk, most
notably children and persons thought to have been assaulted sexually. Where a human rights organisation is not able to arrange
prescreening, the minimal requirement is that arrangements be made a priori for a modicum of post-interview psychological care
where it is found that the witness has been unduly traumatised by the interview process.. Where such care cannot be provided by
the human rights organisation, it should consider refraining from conducting interviews with especially vulnerable crime-base
witnesses.
Furthermore, it must be anticipated that crime-base witnesses will in almost every case make errors of fact.. The best defence
against errors of fact is a gentle cross-examination of the witness during the interview process. This de facto cross-examination is
likely to be successful only where the interviewer entered the interview room with a strong grasp of the investigative file.
Deliberate misrepresentations of the truth are likewise dealt with through de facto cross-examinations rooted in a thorough
knowledge of the case file.. Interviewers must resolve prior to the start of any interview that the interview will be terminated
where a crime-base witness proffers fanciful or other manifestly untruthful information.. An interview record that contains
information which the witness knew to be false – even where other information in the record is likely to be true as well as helpful
to the inquiry – is of neither analytical nor evidentiary value. Were the record of such an interview to appear at trial, competent
defence counsel would seize upon the falsehoods in the record to destroy the overall credibility of the witness. Simply put,
investigators and analysts are not in a position to pick and choose convenient bits of information from interview records that
contain evident falsehoods. Under these circumstances, scarce re-sources should be invested only in crime-base witnesses who
appear to make every effort to state an accurate account of the events in questio.. It is worth reiterating in this con-text that the
likelihood of securing an accurate and honest account from a crime-base wit-ness improves markedly where interviewers are
prepared properly for every interview.
Confidentiality: The position of a human rights organisation with respect to the confidentiality of witnesses and the information
collected from them (these are distinct issues) should be clear in the minds of the interviewers before they set out. This policy
ought in turn to be shared with each witness at the start of an interview. Where a human rights organisation is prepared to
consider the provision of assistance to criminal investigations, it would be helpful if the organisation has a policy permitting the
disclosure of information and/or witness identifying details. The Investigations Division of the ICC found in 2003-2004 that all
manner of human rights organisations were prepared to offer assistance, although few were able to provide detailed witness
information owing to the absence of disclosure policies.. In turn, this gave rise to disputes within a number of human rights
organizations on how to deal with the ICC, in particular the Office of the Prosecutor and its Investigations Division.
