The building blocks of international criminal law
There are significant differences between the professional culture of human rights monitors and that of criminal
investigators and analysts specializing in international criminal law.. In part, this difference stems from the distinct
manner in which the two disciplines approach human rights violations that may amount to core international crimes.. It
would seem fair to suggest that, broadly speaking, a significant and present professional concern of human rights
organizations is to see an end to the perpetration of core international crimes at the earliest possible moment.. While
criminal investigators and analysts would share this concern on a personal level, their professional goals should be
narrowly focused. Without prejudice to the methodology of human rights professionals, the overriding objective of a
criminal investigation and the personnel assigned thereto is to collect sufficient incriminating and exonerating evidence to
make a determination of whether there are grounds for a criminal prosecution. Where the incriminating evidence would
appear to be sufficient, it falls to investigators and analysts to gather additional evidence. However, in cases where the
evidence does not appear to warrant a prosecution, it is the duty of investigators and analysts to inform their superiors of
this fact without delay in order to protect the rights of the individuals under investigation and to preserve public
resources.. Criminal investiga-tors and analysts are able to meet their professional obligations only if they focus carefully
upon all extant inculpatory as well as exculpatory information and evidence.
It is not the object of this short chapter to make human rights professionals expert in the field of international criminal
law – an area of public international law where increasing numbers of human rights monitors have received considerable
training and come to possess no small measure of knowledge. However, whereas a general knowledge of international
criminal law is necessarily the starting point for a criminal inquiry, inter-national criminal investigations tend to be highly
technical as well as dispassionate in nature.. Stated succinctly, the object of an investigation is to determine whether there
would appear to be sufficient evidence to satisfy the requirements for a finding of guilt on a charge that might in future be
laid by prosecutors against a given suspect. In making this determination, investigators and analysts must at all times
remain mindful that each of the offences provided for by international criminal law consists of distinct elements of a
contextual (for example, ‘widespread or systematic attack on a civilian population’), material (such as ‘torture’) and
mental (typically ‘intent’) nature.. These elements are by now well established in international law and do not change
from case to case, although their precise meaning is subject to interpretation by those sitting in judgement, usually on the
basis of the reasoning found in earlier judgements and decisions.. For these reasons, a finding of guilt at trial will follow
only where the prosecutor is able to prove (normally to a ‘beyond a reasonable doubt’ standard) all of the elements of a
given offence through the introduction before a court or tribunal of sufficient evidence.
Likewise, international criminal law sets forth a number of forms of participation.. These are often referred to as ‘modes
of liability’. Among the modes of liability are the ordering of the commission of a crime by others and the failure to
prevent persons under one’s effective control from perpetrating criminal conduct.. All of the forms of participation found
in international criminal law are characterized by a distinct set of legal requirements, each of which must be proved by
prosecutors through the introduction of sufficient evidence before a conviction will be registered by the persons sitting in
judgement.
It is the necessity of proving to a high standard of probability the elements of crimes and the legal requirements of modes
of liability that informs the dispassionate as well as technical nature of the investigative and analytical processes that
underpin the search for justice for core international crimes.. Where the human rights professional seeks to collect
information for possible use in a criminal investigation and prosecution, he or she must consider carefully the structure of
the substantive law on core international crimes and modes of liability.. Learning about the elements of crimes and legal
requirements of modes of liability can be done by means of training or by use of legal sources.. A more durable resource
in such competence building is the Case Matrix application developed at the ICC.. It has been tailor-made for work on
core international crimes.. It provides detailed commentaries on such crimes and modes of liability in international
criminal law, as well as a comprehensive library of legal sources on this substantive law.. It also has a database structure
for the organization of information on core international crimes that can be used by advanced human rights professionals.
Human rights monitors active in the field are often among the first persons to view crime scenes.. Criminal investigators
employed by international criminal jurisdictions rarely have the opportunity to inspect a crime scene until well after the
underlying conduct has been perpetrated.. It is one of the great burdens shouldered by the human rights professional that
he or she is sometimes called upon by survivors to view places of carnage, for in-stance, to examine a scene where
women, children and elderly persons lie dead, evidently from unnatural causes.. As difficult as this reality is for the
human rights monitor who is confronted with it, one of the important considerations that those who arrive first at a crime
scene need to keep in mind is that the evidentiary distance between a given crime scene and the participants likely to be
of most interest to internationalised criminal courts and tribunals – that is, the likes of Charles Taylor, Slobodan
MiloševiĆ, Saddam Hussein and their lieutenants – can be a good deal longer than is sometimes realised.
A number of contextual, material and mental elements must be individually proved to a high standard (such as ‘beyond a
reasonable doubt’) before a court will render a finding of guilt on a charge of, for instance, murder as a crime against
humanity.. Where murder as a crime against humanity has been alleged in the charging document, a prosecutor must
prove four elements relevant to the context in which the conduct occurred:
1. the existence of a widespread or systematic attack directed against a civilian popu lation (an objective, contextual
element);
2. that the conduct of the accused constituted part of the attack (another objective
element, requiring a nexus between the context of an attack and the incident);
3. that the accused knew of the attack (subjective element referring to the context); and
4. that the accused knew of the nexus between the attack and the conduct (subjective element referring to the nexus
between the context and the conduct)..
Additionally, the prosecutor in such a case must demonstrate one material element refer-ring to the conduct of the
accused, that is, that a perpetrator killed one or more persons.. Finally, the prosecutor must also prove that the perpetrator
meant to kill the victim(s), or, in the alternative, that the perpetrator was aware that death would occur in the ordinary
course of events..
Finding sufficient evidence to satisfy each of these elements is a difficult task.. There are various reasons for this.. Only a
handful of the challenges facing investigators and analysts can be touched upon in the following paragraphs..
Prosecutors in most internationalized jurisdictions are bound by codes of professional ethics that demand, among other
things, that a suspect not be formally accused of a crime unless there is a reasonable prospect of his or her conviction..
Put another way, where there is insufficient evidence to satisfy all of the elements of a given crime, professional
prosecutors are precluded from making formal allegations that the offence was perpetrated by the suspect in question..
The general public, including human rights professionals, are normally not formally bound in the same way by this code
of ethics, and there would appear to be a popular tendency to conclude that a crime against humanity must have been
committed where there has been substantial civilian loss of life in a conflict zone.. In contrast, the starting point for the
professional investigator and analyst in such cases is the hypothesis that a crime – but not necessarily a crime against
humanity – may have been committed.. In particular, criminal investigators and analysts commence their efforts with the
knowledge that, whereas the loss of civilian life in a conflict zone may be indica-tive of the perpetration of one of a
number of core international crimes, there is no core international crime where conviction rests only upon evidence that a
killing occurred.. Indeed, where killing is an element (or a part of an element) of genocide, a crime against humanity or a
war crime, evidence that a killing (or killings) took place may constitute proof of only one of the elements of the crime in
question.. For instance, as was laid out in the previous paragraph, murder as a crime against humanity can be broken
down into six elements, all of which must be proved to a high standard, and sufficient evidence of one or more killings is
only one part of the material element of the crime.. Put another way, evidence of a dead civilian does not carry a criminal
investigation as far towards a conviction as one might expect.
It is worth repeating that assembling sufficient evidence to prove core international crimes, in particular to prove that a suspect
perpetrated murder as a crime against humanity, is time consuming and challenging.. For example, investigators often experience
consider-able difficulties in collecting evidence that demonstrates the most basic of the contextual elements of this crime, that is,
that a civilian population was the object of an attack.. Prov-ing this contextual element normally entails demonstrating beyond a
reasonable doubt that the state or non-state actor (such as an armed political group) which perpetrated the attack was acting in
accordance with a policy that a civilian population should be attacked.. While the existence of such a policy may be inferred, this
inference must be a reasonable one.. Owing to the fact that the liberty of an accused person is hanging in the balance during most
internationalised criminal proceedings, those sitting in judgement in such cases are necessarily very careful when finding against
an accused person on the basis of inferential evidence.. This is one of the reasons why it is difficult to envision a situation where
a court will find that the presence of dead civilians, in particular when the loss of life took place in a single location (rather than
over a widespread area), is suf-ficient evidence, in and of itself, that there existed a policy on the part of the attacking side to
attack a civilian population.. This reading of the law generally leads investigators and analysts to seek evidence which shows that
murders or conduct similar to murder were perpetrated elsewhere by the same state or non-state actor.. The aim is to meet the
‘wide-spread or systematic’ requirement of the first contextual element better.. The search for evidence of this nature requires
investigative resources that are very often unavailable.. As will be discussed later in this chapter, human rights professionals and
their organisations are sometimes particularly well placed to assist investigators and analysts with proving this element.
Apart from the need to collect evidence that a given crime such as murder as a crime against humanity was perpetrated,
international criminal law additionally requires prosecutors to demonstrate the form of participation of the accused with respect
to any and all alleged of-fences.. Each of the forms of participation set forth in international criminal law have their distinct legal
requirements that must be proved before there can be a conviction.. These forms of individual criminal liability can be found in,
among other legal instruments, the Statute of the International Criminal Court (‘ICC Statute’) in articles 25 and 28.
This aspect of international criminal law would appear to be widely misunderstood outside the ranks of international criminal law
practitioners.. This is unfortunate as the substantive law on individual criminal responsibility is particularly important insofar as
the majority of suspects under investigation by internationalised courts were seldom if ever physically present when the
underlying conduct (such as a massacre) took place.. We are reminded in this context of the ICC Statute’s requirement that the
Court should target persons most responsible for core international crimes of concern to the international community as a whole..
In practice, this means that the Court is likely to concern itself with persons whom the evidence suggests have perpetrated crimes
at some distance from the physical conduct giving rise to investigations and prosecutions.. International criminal jurisdictions
should generally speaking concentrate their limited resources on persons with higher-level responsibility.. Lower-level
functionaries should be left to national courts.
International criminal law has evolved to provide a broad range of modes of liability which enable prosecution of persons not
physically present where crimes are perpetrated. These modes of individual criminal liability ensure that persons who involve
themselves in the commission of genocide, crimes against humanity and war crimes are not granted de facto immunity from
prosecution merely by virtue of their physical distance from the murder and mayhem arising from their acts and omissions..
Allegations of ordering, joint perpetration, complicity, inducing and command responsibility – and there are still more modes of
individual criminal liability – must be carefully investigated, properly pleaded in an indictment and proved to the necessary
degree before a conviction can be registered for one of the core international crimes.
More specifically, if troops subordinate to a military commander were ordered by that military commander to attack the
civilian population of a given village, which the sub-ordinate troops thereupon did, giving rise to numerous civilian
deaths, it is necessary to demonstrate not only that, for example, the crime against humanity of murder was perpe-trated
by the commander, but also that the commander was criminally liable by virtue of the orders that he or she issued.. Stated
in a different way, proof of culpability for any given crime must be coupled with proof of individual criminal
responsibility for that crime on at least one of the grounds set forth above, that is, ordering, joint perpetration, complic-ity
and so forth.. At the same time, each of these forms of individual criminal liability has a number of distinct legal
requirements which must be proved for a finding of criminal liability against a given accused.. For instance, a finding of
criminal command responsibil-ity normally rests upon several legal requirements of increasing complexity, including the
requirement that it be proved that the commander in question was aware or should have known that forces under his or
her command were committing, or were about to commit, conduct contrary to international criminal law.
In sum, the legal requirements for a conviction on any crime set forth in the key inter-national criminal law instruments
such as the ICC Statute are considerable.. Both the legal requirements of an enumerated offence (for example, murder as
a crime against humanity) and the mode of individual criminal liability (for example, ordering) must be proved beyond a
reasonable doubt.. Meeting these legal requirements, and assembling the evidentiary bases upon which they rest, is
necessarily time consuming and can be concep-tually difficult. Where investigators and analysts can secure assistance in
the provision of relevant information and evidence from, say, a human rights organisation, such assistance should be
gratefully received.
Criminal investigators and analysts should never demand assistance on their terms from third parties to an investigation,
such as human rights organisations.. Criminal investiga-tors and analysts are, however, most likely to be responsive to
offers of assistance where this assistance is properly informed of the legal requirements of the crimes and modes of
liability that are of relevance to a given case.. It is important to be aware of this even if the day-to-day objectives of
human rights organisations necessarily differ from those of a criminal investigative body.. Human rights organisations
and professionals may wish to systematically improve their knowledge of substantive international criminal law on core
crimes and modes of liability.. Some of these organisations are more resourceful than most investigation and prosecution
services tasked with core international crimes.. These organisations should be in the forefront of competence building in
this area, and they should actively make use of tools such as the Case Matrix to give their profession-als immediate
access to first rate information on core international crimes and modes of liability, as well as to the law-driven approach
to the organisation of factual information concerning such crimes provided by the Matrix to its users..
International criminal investigations and analysis
The offices of the prosecutor in international criminal jurisdictions were maintaining dis-tinct investigations divisions up until the
end of 2007 when this chapter was written, subordinated either to the chief prosecutor or the operational prosecutions division..
This makes good sense given the large volume of the work processes linked to fact-finding and -analysis in core international
crimes cases.. The investigations divisions have analysts and investigators drawn from a variety of disciplines, most commonly
policing and the prac-tice of law, albeit there has been an increased awareness of the need for high academic qualifications..
Individuals holding advanced degrees in fields such as history and politics are frequently employed as analysts.. The ICC has also
appointed a number of investiga-tors who have worked in the field of human rights for NGOs and IGOs.
Properly conducted investigations into allegations of genocide, crimes against humanity and war crimes are to a large extent
analytically driven.. That is, the analysts, investigators and counsel employed by any given prosecution service are meant to
constantly assess the available information against the elements and legal requirements of any given crime and mode of
individual criminal liability as defined by the theory of criminal responsibility in the case.. The initial phases of inquiries and
investigations have several important compo-nents.. Two of these components stand out for the purposes of this chapter: (a) the
work to establish the so-called crime base of the case; and (b) the process to develop information on the link between the suspect
and the actual perpetration of the crimes in question.. We will consider these two work processes in some detail in the following..
(a) Crime base
Despite the occasional practice of the investigations divisions of the ICC and in particular the ICTR, war crimes inquiries
generally do not commence with an examination of the alleged criminal conduct of a given individual.. Experience has shown
that where inves-tigations are ‘target driven’ from the start, numerous problems invariably arise, many of them stemming from a
desire of inadequately qualified investigators to focus to the exclusion of all else upon information that the investigators deem to
be inculpatory. This lesson having presumably been learned by prosecution offices through trial and error, it is today difficult to
envision a situation where an inquiry would be launched without prima facie evidence that a crime has been committed. Only
after some sort of crime base has been established are suspects identified and their conduct examined. As will be discussed in
sub-section (b) on ‘Linkage’ below, investigators and analysts should generally analyse the state or non-state organisation that
might be behind a given offence before seeking to establish individual criminal responsibility.
International criminal jurisdictions seem to be, in the first instance, most responsive to allegations of murder in one of the several
forms which this offence can take in interna-tional criminal law.. In attempting to determine whether a crime has been
committed, criminal analysts and investigators initially study open-source materials, that is, NGO, IGO and governmental reports
found in the public domain, mostly by means of Internet searches.. On occasion, in particular at the ICC, materials of this nature
are submitted unsolicited by the organisation that prepared them directly to the Office of the Prosecu-tor.. However such
materials are acquired, the inquiries made by the investigative arms of international criminal jurisdictions will start with the
reports and other information generated by, inter alia, human rights monitors and their organisations.. The apparent quality of
these reports may play a factor in subsequent decisions concerning whether to commit additional investigative resources to an
inquiry.. As a general rule, the efforts of governmental agencies and civil society groups that appear to be well researched and
documented will encourage further inquiries; reports that lack sources or otherwise ap-pear to have been poorly prepared
discourage additional inquiry.. Media reports, where they are not of a so-called investigative nature, generally play a less
significant role as they are insufficiently sourced and are known to have been written against tight deadlines.. Where reports of
any sort appear to have been poorly prepared by their authors, analysts and investigators will have little to build upon, and, if the
volume of allegations stemming from a given situation (such as in the northeastern Democratic Republic of the Congo) far and
away outstrips the capacity of the investigation service in question to examine all allegations, resources will be committed where
there would appear to be natural partners outside of the institution able to assist an inquiry.
During the formative years of the ICTR and the ICTY, the investigations divisions of both institutions often relied heavily
upon materials published by what might be termed third parties to the underlying conflicts, that is, IGOs and NGOs that
were represented in the conflict zones and independent of any of the belligerent parties.. The reports and the allegations
of these third parties were examined closely at the start of numerous ICTY and ICTR criminal inquiries and often
revisited during subsequent investigations.. It was frequently the case that as an investigation progressed, the findings
presented in IGO and NGO reports were buttressed by the testimony of the authors.. In building their cases, inadequately
skilled investigators sometimes supplemented these reports with little more than the testimony of the victims of the
crimes alleged.. In the meantime, suspects were indicted and apprehended, and prosecution counsel theretofore unfamiliar
with the in-vestigation would be presented on the eve of trial with a weak investigation file.. Unsur-prisingly, prosecutors
would find the evidence unsatisfactory.. Such trials, if they took place, proved to be difficult.
Criminal inquiries continue to commence with an examination of open-source materials gener-ated by, inter alia, human
rights professionals.. While the quality of open-source materials is often important to the decision of whether to afford
additional resources to an inquiry, this phase of the inquiry is invariably short-lived.. The focus of an inquiry will
generally shift quickly to an effort to secure documentation generated contemporaneously by the party which is suspected
of involvement in the prima facie crimes under examination. Documentary materials of this sort, where they can be found
and experience suggests that such materials are invariably extant in considerable quantities, even in places such as the
northeastern Democratic Republic of the Congo can constitute a proverbial goldmine of information concerning the
movements and other actions of the group suspected of having perpetrated criminal conduct. Whether the contents of
contemporaneously generated documents prove after further investigation into the case to be inculpatory or exculpatory,
such documents are the key to determining the direc-tion in which an investigation ought to go after the analysis of the
open-source materials has been completed and a decision taken to proceed with more in-depth inquiries. When open-
source materials are examined, one of the first things that investigators and analysts will look for in these reports is
whether the findings of the authors would appear to have been based upon contemporaneously generated documents..
Investigators and analysts will seek to secure relevant documentation from those NGOs and IGOs who are thought to possess
such materials.. Additional document searches and seizures will generally be coupled with the first efforts to establish a network
of sources and informants in the field, at least where the context within which the alleged crimes were committed remains wholly
or largely unchanged. It is only after these steps have been taken, that criminal investigators should begin to examine victims of
and witnesses to suspected criminal conduct (that is, so-called crime-base witnesses). Forensic work for instance, the exhumation
of bodies from mass graves might commence later still. Fo-rensic examinations can be very expensive and tend to consume large
quantities of finite human and financial resources. It is largely for these reasons that investigation services should delay forensic
work until there is a reasonable prospect that the forensic work in question will relate to a case which is likely to proceed to an
arrest warrant, indictment and trial.
Most individuals brought before international criminal jurisdictions are asked to answer to several charges, including allegations
of crimes against humanity.. It will be recalled that the first contextual element for a finding that a crime against humanity has
been perpetrated is sufficient evidence that the alleged crime was part of a widespread or sys-tematic attack.. Where prosecutors
charge the perpetration of the crimes against humanity of murder and (or in the alternative) extermination, such charges are
generally based on the earlier identification (for instance, from open sources) by analysts and investigators of a number of
locations where unlawful killings may have taken place.. In turn, investigative staff will have built upon and confirmed their
preliminary findings, ideally through documentary materials and forensic evidence buttressed by crime-base witness testimony.
This investigative approach likewise lends itself to the investigation of other crimes against humanity such as enslavement,
deportation or forcible transfer, torture, persecution, rape and other sexual offences.. For example, the occurrence of a great many
rapes in one village, held up against evidence that other villages were attacked by the same belligerent party without
demonstrable occurrences of sexual violence, would likely undermine any working hypothesis that the overall commander of the
attacking forces had instituted a policy of sexual violence as part of a wider campaign of repression against a given group of
civilians.. Conversely, evidence collected over a widespread area suggesting that sexual violence was a feature of all or most
attacks would lend support to allegations of rape as a crime against humanity against the overall commander. The key point is
this: investigating crimes against humanity, in particular those that do not involve killing, takes a good deal of time and effort
owing to the necessity of meeting the ‘widespread or systematic’ le-gal requirement. In the same vein, crimes against humanity
should not be charged where investigative staff have not properly examined whether the ‘widespread or systematic’ element of
the crime can be satisfied. Human rights professionals are especially well placed to assist with criminal inquiries into whether a
given allegation meets the ‘widespread or systematic’ threshold, in ways which will be discussed later in this chapter.
(b) Linkage
It has already been observed elsewhere in this chapter that international criminal juris-dictions, in particular the ICC, can
be expected to primarily pursue alleged perpetrators who were not physically present when criminal conduct was
committed. It has further been established that international criminal law provides for a number of modes of individual
criminal liability that do not require an alleged perpetrator to have been physically present at the scene of a crime or to
have been the actual perpetrator of the crime for there to be a finding of criminal culpability. The search for linkage
information and evidence is the process whereby information and evidence are acquired relevant to allegations that a
given individual is criminally liable for a particular underlying act. Invariably, the linkage search process commences
with an effort to link a state or non-state organization to the underlying conduct. Only later does the linkage process begin
to focus upon possible suspects.
Many investigative files compiled during the formative years of the ICTY and the ICTR suffered from weak linkage
evidence. This state of affairs eventually contributed to the transfer of oversight of investigations from senior
investigative staff to prosecution counsel. Cognizant of the early investigative shortcomings at the ICTY and the ICTR,
the ICC inquiries and investigations have focused heavily on questions of linkage. From the start of any given ICC
inquiry, attention is given to the allegations of criminal misconduct made against groups and individuals in open-source
reports by IGOs, NGOs, governments and others. Specific allegations against individuals are initially observed in
passing. Slightly more attention is paid to assertions that a particular state or non-state organization is responsible for
underlying conduct of an ostensibly criminal nature. Initial investigative efforts to secure linkage information and
evidence concerning groups and individuals focus heavily from the start of an inquiry and throughout an investigation –
upon the acquisition and analysis of documentation generated contemporaneously by suspect groups and individuals..
Hence, where criminal investigators and analysts examine the linkage component of a given open-source report, this is
done less with an eye to the conclusions by the report’s author than to the nature of the source materials.. Where the latter
are deficient, investigative staff is unlikely to pay much attention to the report; where the sourcing of the report shows the
author’s commitment to the substantiation of any and all claims of criminal responsibility, investigative staff is likely to
contact the author with a request to share his or her source materials with the nascent inquiry.
Investigators and analysts will seek the assistance of so-called linkage witnesses at a later stage of an investigation, after
the effort to seize or otherwise acquire contemporaneously generated documents has progressed.. Linkage witnesses are
important where there is insufficient documentation. Their importance corresponds inversely to the strength of the
documentary base.. In an ideal situation, the latter is so firm that linkage witnesses in particular, the professional
associates of persons who have emerged as suspects during the investigation will be consulted by investigators on few if
any issues beyond the filling of holes in the collection of contemporaneously generated documentation. Some of the
challenges inherent in dealing with linkage witnesses will be discussed later in this chap-ter. Linkage witnesses are in
most cases although not in every instance tied conceptually to the documentary base. For example, victims of and
witnesses to alleged criminal conduct (that is, crime-base witnesses) can also be a source of linkage evidence. Depending
on the nature of the underlying conduct, investigators might ask a crime-base witness about the mental state of the
physical perpetrators of the conduct, as well as about mili-tary activity in an area prior to the perpetration of the conduct
(such as an artillery bar-rage that killed civilians) in an effort to determine, in part, whether or not the attack may have
been indiscriminate.. Despite these observations, it is on the whole the experience of international investigation services
that crime-base witnesses do not advance the linkage component of an investigation beyond a limited point.. Where
linkage evidence is sought from crime-base witnesses, the effort is frequently limited to questioning on issues such as the
types of vehicles in which the perpetrators arrived (if relevant to the investigation), the uniforms or clothing that were
worn by the perpetrators (if relevant), the weapons car-ried by the perpetrators (again, if relevant) and other details of this
nature.. Where these details are relevant to the investigation, their collection seldom does much to lessen the evidentiary
gap between the underlying conduct, on the one hand, and the persons being investigated by international criminal courts
and tribunals, on the other. There are often considerable differences in the recollections of crime-base witnesses on the
aforementioned, and related, details.. In other instances, the recollections of a group of victim-witnesses are so
remarkably similar as to suggest that the witnesses have colluded in some way or otherwise been prepared improperly..
For these and other reasons, there is some debate within the profession concerning the wisdom of seeking linkage
evidence from what are essentially crime-base witnesses.. When a decision is taken by an investigator to make linkage
enquiries of crime-base witnesses, such enquiries should be made with extreme care lest individuals and groups be
unjustly impugned, or, in the alternative, the witness directs investigators towards persons whom reliable evidence
suggests had no relationship to the underlying conduct.. Likewise, informants and other sensitive sources, while
important to the building of the linkage component of a file, must be handled with caution in light of their unknown
loyalties, and, in some cases, unsavory characters. The view taken here is that informants and sensitive sources are best
employed as guides to documentary repositories. Finally, it will be noted that personnel employed by NGOs and IGOs,
journalists and members of armed forces who were present in a conflict zone but were not serving with a belligerent party
(such as United Nations military observers) are frequently consulted by the investigative arms of international criminal
jurisdictions.. In some cases, these individuals are asked by investigators to provide formal statements and later to testify
at trial, usually for the prosecution.. The evidentiary issues which are addressed by criminal investigators with, among
others, human rights professionals will be discussed later in this chapter.
(c) Combining crime-base and linkage evidence
Experienced investigators and analysts are in the main familiar with the earlier efforts and missteps seen in particular at
the ICTY and the ICTR. Having drawn conclusions from earlier errors, later inquiries and investigations of the
investigation services of international criminal jurisdictions can generally be divided into four broad phases:
preliminary analysis of open-source materials, operational planning and liaison with personnel employed by IGOs,
NGOs, governmental and other organisations who have prepared reports of particular interest to the investigative body;
2. collection of contemporaneous documentation, its analysis, other advanced document collection and analysis;
3. collection of crime-base and linkage-witness statements, ongoing analysis and document collection, and the
identification as well as pursuit of individual suspects; and
4. Where the evidence warrants, the preparation of warrants of arrest, and, or in the alter-native (depending upon the
jurisdiction), indictments targeting specific individuals.
The second and third phases are particularly important for human rights professionals to fully appreciate. In particular, it
should be noted that only when the collection and analy-sis of information has reached a relatively advanced state should
a given inquiry and sub-sequent investigation begin to focus narrowly on possible suspects. Put another way, war crimes
inquiries and investigations should rarely be suspect-driven until relatively late in the investigative and analytical
processes.. It is when investigators and analysts have identified a suspect (or suspects), that they assess the available
information increasingly in terms of its evidentiary value, whether this value is inculpatory or exculpatory.
