construct specialized teams to deal with the multifaceted issues that emerge in the investigation
of complex crimes.
2. Considerations relating to evidence
Documentation retrieval and analysis is a vital part of investigating system crimes. For example,
analysis of logistical, communications, operational, munitions, reporting and disciplinary practices can lead to strong evidence of general control, and make it increasingly difficult to rebut the
conclusion that those high in the chain of command authorized the crimes under investigation.28
Depending on the circumstances, documentary investigations require creativity and subtlety, and
may require proactive measures to stop those under investigation from subverting the process.
Prosecutorial initiatives are often seen as urgent because evidence may be lost, destroyed or
weakened with the passage of time. However, this depends on the type of evidence. It is highly
unlikely that all witnesses in proceedings on large-scale and systematic human rights violations
will suffer faded recollection, and there are usually plenty of available witnesses (as opposed to
eyewitnesses, who can be scarce).29
Similarly, the degradation of physical evidence (such as human remains), while undesirable, may
not significantly damage its evidential use. Exhumations are generally not required to determine
that crimes occurred, or to identify victims, but they are helpful in demonstrating the immediate
circumstances of the victims’ deaths and may give credible indications (in the case of genocide)
that victims belonged to a particular social or ethnic group. Even several years between the
event and the investigation generally will not degrade the evidence to the extent that it cannot
be used for this purpose. (There are many other considerations governing exhumations that are
significant but beyond the scope of this tool.)
However, the greater risk lies with intentional contamination or destruction. Clandestine graves
may be disturbed by relatives looking for the remains of their loved ones or by those seeking
to pervert the course of investigations. This can create serious difficulties for the admissibility
of any evidence from a particular site. The need for urgent action should emphasize effective
protection of evidential sites or documents for future investigation. Such steps may need to
be taken by those who are first on the ground. Anyone with responsibilities for gathering or
preserving evidence should be given adequate training and should follow pre-established pro28
S ee Williams J. Fenrick (Senior Legal Adviser of the Office of the Prosecutor at ICTY), “Attacking the enemy civilian as
a punishable offense”, Duke Journal of Comparative and International Law, vol. 7, p. 539, available at www.law.duke.
edu/journals/djcil/articles/djcil7p539.htm. Strongly recommended is section VIII on proving offences to give a sense of the
complexity of the investigation in which ordinary criminal investigators normally will have no experience.
29
In cases of system crimes, witnesses willing to testify to the general events may be plentiful, although eyewitnesses remain
rare (usually many are dead or missing). In general, inconsistencies in prior statements or allegations that the witness suffers
from post-traumatic stress disorder will not be fatal to the testimony.
14
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