PRACTICE NOTE 5 26 EVIDENCE STRATEGIC LITIGATION OF ENFORCED DISAPPEARANCES IN AFRICA EVIDENCE Evidence is essential when building a legal claim, in order to prove that the crime of enforced disappearance occurred. Lawyers must consider the required elements to prove offences under the relevant national and international laws, and the variety of sources available to build the case. The sources of evidence include victim statements, statements from witnesses, expert reports, documents, video or audio recordings, medical reports, physical and forensic evidence, and various forms of media, including newspapers and secondary sources. When documenting cases of enforced disappearance, lawyers and forensic experts will find useful guidance in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) and the Minnesota Protocol on the Investigation of Potentially Unlawful Death. What evidence is needed depends on the type of proceeding and the burden of proof required. As stated above, in criminal cases, it is necessary to prove ‘beyond reasonable doubt’ that the accused has committed the crime. In relation to civil and human rights claims, in principle the victim has the burden to present a prima facie case of enforced disappearance. However, there are a number of situations where the burden of proof shifts, as outlined previously, and it is upon the State to clarify the whereabouts of the disappeared. Additionally, given the complexity of enforced disappearance, it is accepted by most human rights courts and bodies that when direct evidence has been destroyed or altered, circumstantial evidence, presumptions and indicators are of great significance to the investigation.