Prosecuting War Crimes Symposium – Evidentiary Challenges
Editor’s note: The following post highlights a subject addressed at a Lieber Institute expert workshop focusing on Prosecuting War Crimes. For a general introduction to this symposium, see Professor Sean Watts and Jennifer Maddocks’s introductory post.
The Commission for International Justice and Accountability (CIJA) is a non-governmental organization working in support of justice initiatives across multiple conflict zones. CIJA has been collecting material in Syria since the beginning of the conflict in 2011 and has amassed over one million pages of regime documentation in that period. The material has been, and continues to be, collected primarily for use in domestic criminal justice proceedings against regime members responsible for international crimes connected to the conflict. This post describes some of the experiences and challenges CIJA has encountered gathering evidence for domestic prosecutions in Syria since 2011.
Challenges Related to Deploying Investigators in Combat Zones
When deploying investigators to a combat zone, it is essential to understand the security situation and the risks involved. These risks can vary greatly across the area of operations and can change quickly. It is critical to monitor the situation constantly while investigators are deployed. Recognizing the difference between the general risk to individuals in the area of deployment and the specific risk to investigators, who may face additional threats based on their work, is also crucial. Similarly, it is important to identify and distinguish between the threats that local investigators and foreign investigators may encounter, while respecting the right of local investigators to stay and engage in the investigation process in their home country.
Once these risks have been identified, they should be assessed and weighed against the goal and scope of the deployment. In some circumstances the goal may be simply to collect all available material produced by a perpetrating organization in the hope that one day some of the evidence may be useful at trial in an as-yet undetermined jurisdiction. In other situations, the material being collected may be destined for more immediate use in support of active criminal justice efforts. In either case, it is essential that the risk threshold and absolute “no-go” actions are clearly conveyed to the investigators.
Gathering Evidence from Contested Territory
Preparing an appropriate collection plan requires a clear understanding of the eventual end user of the material (the target audience) and the requirements related to its eventual use. Determining the scope of the collection action—whether collection is for a specific subset of available information or for all available material produced by a party to the conflict—is also vital.
Transferring material out of the conflict zone can also be a significant challenge and should be considered a key element of the collection planning process. Often, the number of safe routes out of the conflict area may be limited. Those routes may also be indirect and may require multiple stops and the navigation of internal checkpoints to reach an international border. Successful transport operations will therefore require advanced assessment and a clear movement plan. If material cannot be moved safely and securely at the time of collection, the evidence may have to be stored internally until there is a shift in the dynamics of the conflict. Whatever collection procedures are eventually adopted, it is essential that the procedures are realistic, consistently reproducible over time and throughout the collection area, and are actually followed by the collection team.
Authenticating Evidence from Contested Territory
Documenting and ensuring the integrity of collected information is also critical. In Syria, the two most common recording scenarios have involved either collection by experienced CIJA investigators or by interested private individuals.
Most of the material compiled has been gathered by CIJA investigators with significant training, years of experience, and a thorough understanding of proper chain of custody record keeping. CIJA training on chain of custody includes instruction on the use of the proper forms, guidance on the specificity needed when describing collection activities, clarification of the value of taking photos and videos when the situation allows, and critically, an emphasis on ensuring that deviations from existing collection procedures are documented and explained in detail.
In other situations, sympathetic individuals have delivered material to investigators. In these cases, an investigator is expected to interview the provider of the evidence and record all available information on the origin and chain of custody of the material. Occasionally, investigators may conduct additional interviews with those who assisted in the collection and transportation of the gathered evidence.
Once collected material has been secured and scanned, a content-related assessment of its authenticity is conducted. This includes reviewing the material for consistency with other evidence compiled by the group and assessing its accuracy by comparing it with material gathered in different geographic locations, evaluating it against open-source material, and considering the assessment of insiders. Importantly, one way to limit opportunistic, forged documents from entering a material collection is to refrain from paying for information as part of the collection process.
Conclusion
The collection of evidence in an active conflict zone presents many challenges, but it is vitally important to the pursuit of justice and accountability. Any collection effort should begin with a clear understanding of the security situation and the risk to investigators—both domestic and international—in the territory concerned. The collection plan should reflect the goal and scope of the investigation and should account for the audience and ultimate end use of the material. The collection team should be prepared for the difficulties of transferring material out of a conflict zone, and investigators should follow proper documentation and chain of custody procedures to ensure the integrity of the information collected. This guidance has proved valuable to CIJA’s efforts in Syria and could be adapted for use in other conflict areas.
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Chris Engels is Director for Investigations and Operations at the Commission for International Justice and Accountability (CIJA).
Photo credit: IDF Spokesperson’s Unit
