Telford Taylor, a Nuremberg proceedings prosecutor, observed in his Final Report that the issue of genocide and crimes against humanity and their investigation "was far bigger and far more difficult of solution than anyone had anticipated." The experience of more recent cases, and particularly the UN ad hoc tribunals, has confirmed that investigating crimes of this kind is far more complex a duty than the public opinion and the policymakers may think when the call for justice is made. The investigation of these crimes raises hard questions of method at different levels, from epistemology and cognitive psychology, to forensic sciences and resource management. The hardest investigative challenges are not related to the criminal act as such, which is often a blatant and notorious phenomenon, but to the questions on specific intent and individual responsibility, particularly for those suspects at higher levels of authority.
Early precedents of investigations date back to the sixteenth century with Bartolomé de Las Casas, who documented crimes committed by the Spanish conquerors on the American population. He based these writings on his field research, as well as on numerous affidavits and documentary evidence. De las Casas invoked "the congregation of the faithful" to stop these offenses, much in the way that contemporary human rights reports conclude with appeals to the "international community." Historical chronicles and accounts from the victimized communities show different forms of investigation carried out between the seventeenth and the twentieth centuries, for example, in the cases of mass violence against the Jewish and Moors from Spain, and against Christian subjects in Japan.
The work of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars did pioneering work in the twentieth century. In 1914 they published a thorough investigative report comprising numerous interviews, pictures and detailed maps, and reached the conclusion that the Balkan leaders and not the peoples were "the real culprits in this long list of executions, assassinations, drownings, burnings massacres and atrocities furnished by our report."
World War I also gave rise to a number of investigative initiatives in the form of official commissions of enquiry, criminal investigations and research literature. Most significantly, in 1918, the Ottoman authorities established two commissions to investigate the massacres of Armenians, one parliamentary and another one administrative. The latter had powers to search and seize documents, interview witnesses and arrest suspects. After two months of work this commission recommended criminal prosecutions and forwarded the evidence to the judicial authorities. This led to an indictment by the Ottoman Procuror General against the Ittihad leaders for "the massacre and destruction of the Armenians," and to their subsequent conviction.
The crimes committed in World War II led to far greater developments on both national and international, judicial and academic investigations of international crimes, which in turn inspired renewed interest on this matter beginning in the early 1990s. A definite methodology of investigations does not seem plausible because of the variety of criminal offences and scenarios, but review of the investigative experiences does suggest the following ten key areas.
The success of the investigations depends on a structure of opportunity determined by a range of social, political and operational factors. While international crimes are typically the result of a complex web of organizations and complicities, to investigate and prosecute them requires a complex array of contributions; in other words, where international crimes are concerned, it takes a network to fight a network.
Taylor observed how the initial support for the Nuremberg proceedings had declined sharply by 1948 as a result of the "waning interest on the part of the general public and the shift in the focus of public attention resulting from international events and circumstances." For this reason, the courts were obliged to accelerate the proceedings and reduce the number of cases. The UN ad hoc tribunals have faced very similar problems fifty years later, having to adjust their schedule to varying levels of political and financial support. The scope of attention and support of the societies and institutions that sponsor the investigations is always limited, and dependent on changing trends and priorities. A thorough assessment of the resulting opportunity structures is essential for the success of the investigations.
A certain tendency to downgrade the presumption of innocence of the accused is common to the investigations of international crimes, due to the gravity of the crime and the expectations created by the proceedings. In an atmosphere of public outcry the temptation may arise to assume that, as was suggested in the Demjanjuk case, "the cost of allowing the real Ivan to go free by far outweighs the cost of convicting an innocent man" (Wagenaar, 1988). Demjanjuk was actually wrongly accused and convicted of being "Ivan the Terrible," the officer in charge of the gas chamber of Treblinka. He is a paramount example of investigative and judicial mistake concerning a case of genocide.
Such an approach would amount to a return to the classic doctrine that justified lowering the standards of proof in cases of atrocious crimes, by the maxim in attrocissimis leviores coniecturae sufficiunt et licet iudice iura transgredi ("in very atrocious crimes light assumptions suffice and it is licit for the judge to transgrede the law"). This approach was already dismissed by C. Beccaria in the eighteenth century as a "cruel imbecility," and contrary to the modern principles of due process.
Deviations from investigative objectivity may emerge in the following aspects of a case: selective choice of the matter by extrajudicial criteria; prejudice suspect-driven (as oppose to offence-driven); investigation design followed by a bias of corroboration (as opposed to objective testing of allegations by both corroboration and falsification); speculative focus on the intentions rather than the actions of the suspect; emphasis on the suffering of the victims while overlooking the individual responsibility of the suspect; and use of vague charges and liability concepts.
Feelings of outrage and demands for swift action provoked by mass violence are understandable among victims as well as among the general public. However, investigators need to rise above such a pressing atmosphere and conduct their work with strict objectivity and respect for the guarantees of the accused, beginning with the presumption of innocence. As it was observed of the miscarriage of the Demjanjuk case: "the fact that the charge involves the murder of 850,000 innocent people does not justify a reduction of the standards of meticulousness that in other circumstances would be accepted as a normal requirement" (Wagenaar, 1988). To the contrary, the gravity of the case only increases the responsibility of the investigating officer and demands the highest standards of objectivity.
A Multidisciplinary Approach
Investigations of international crimes require an approach that can integrate various fields of knowledge, from forensics to social sciences and information technology. Conventional investigative techniques are not sufficient because of the distinctive features of the matter, which make it essentially different from the investigation of common crime. This contradiction surfaced in the investigations for the Tokyo trials, when FBI agents were assigned to the prosecution in the belief that their expertise would meet the challenges of the investigation. However, these agents lacked background knowledge on Japanese society and institutions, and thus were unable to understand the role of the suspects, and ended up asking them for basic information.
The Office of Special Investigations (OSI) of the U.S. Department of Justice (focused on Holocaust investigations) initially relied on police officers, only to replace them progressively with historians through the 1980s. Similarly, the National Investigations Team for War Crimes of the Netherlands abandoned the original plan of 1998 to have a staff of police officers, after realizing that experts with advanced training and proper contextual knowledge were indispensable. Nevertheless, important contributions have originated in the domain of domestic investigations the fields of forensic sciences and criminal analysis, providing key physical evidence and mastering large volumes of data with advanced technological tools.
Mutual support between criminal proceedings and social research has been the rule in every major investigation of international crimes. The Armenian genocide had among its initial reporters historian A. J. Toynbee, whereas subsequent historiography on the issue has relied substantially on judicial records. The first historiographic wave on the Holocaust in the 1950s and 1960s (Ritlinger, Hilberg, Poliakov and others) used the evidence and findings of the Nuremberg trials. Those authors in turn were utilized by the interrogators of Eichmann and contributed themselves as witnesses for a number of trials. This tradition of cooperation has continued with different national commissions, as well as in the United Nations ad hoc tribunals, who utilized a number of historians and social scientists in their investigation teams. Descriptive statistics, based on medical records or victim statements, have been utilized to measure the volume and profiles of victimization, since the Crimean War (1854–1855) and World War I, up to the Guatemala and Peru Truth Commissions, ICTY (International Criminal Tribunal for the Former Yugoslavia) and the victimization of children in Uganda.
Concerning nonjudicial reporting, there is a whole field of research comprising reports by human rights organizations, Ombudsman offices, state supervision organs, immigration agencies, and parliamentary or truth commissions. The works of these bodies of enquiry may anticipate and enable criminal investigations, as happened in the cases of the Armenian genocide, Nuremberg (preceded by the UN War Crimes Commission), the Argentinean juntas trial (CONADEP, National Commission on the Disappearance of Person), ICTY (UN Commission of Experts), Guatemala (UN Commission for Historical Clarification and Commission for the Recovery of Historical Memory), and East Timor (Commission of Inquiry and International Committee of Inquiry). The contributions of nongovernmental organizations are particularly important, as they often pioneer the investigative effort and manage to achieve remarkable results with limited resources.
Intelligence agencies have also made investigative contributions, when appropriately instructed to this effect. Antecedents are known since the reports of British military intelligence on the massacres of Armenians. A case in point is the contribution to the Nuremberg proceedings of the Research and Analysis Branch of the U.S. Office of Strategic Studies. The investigations related to the former Yugoslavia have also been assisted by a number of intelligence agencies, such as the Bosnian Agency for Information and Documentation.
Last but not least, local expertise is indispensable in interpreting the relevant information in its authentic social context. In the Nuremberg investigations this expertise was integrated through a number of analysts familiar with the German society and institutions (notably F. Neuman, Chief of Analysis). International tribunals have taken different approaches on this matter; while the prosecutor of the ICTY was reluctant to integrate local officers for reasons of impartiality and security, the prosecutor of the SCSL (Special Court Sierra Leone) has relied on national investigators acquainted with the relevant society and conflict.
Disregard Simplistic Explanations
The easiest and most impressionistic explanations of international crimes need to be discarded: the criminal usually is not a psychopath, command structures are never perfect, and the crimes are not the mere result of ideology or a flawlessly planned course of action. Unfortunately for the investigating officer, the events are usually much more difficult to explain and prove than in other cases. The criminals, particularly at the leadership level, tend to be "terribly and terrifyingly normal" (as Hannah Arendt said of Eichmann). Ideology may be one of the criminogenic factors, but it is rarely a decisive one. Command structures are fluid phenomena with frequent anomalies that "cannot be understood in isolation" (in the words of M. van Creveld), which obliges one to employ a complex contextual analysis of their de facto functioning. And no matter how much prosecutors like reductionist conspiracy theories, waves of violence over extended periods of time are most often the result of complex decision-making processes, conflicting interests, and unexpected factors. For investigative success, it is best to discard simplistic conceptions, and to face the complexity of these phenomena with the appropriate human and material resources.
The Centrality of Analysis
The tension between operations (collecting evidence) and analysis (evaluating and integrating it) is inherent to any criminal investigation and evolves around the basic question of "do we have enough evidence?" which can only be addressed through systematic analysis of what has been collected. This then typically prompts the question "Do we use our limited time and resources to analyze or to collect?"
The imagination of the lay audience may be captured by the picture of an investigation led by an operational strike force moving hurriedly to the scene of the crime to seize the evidence and deliver a "tough" and prompt response. In reality, an operations-led model tends to cause lack of focus and a certain evidentiary hypertrophy, a situation where there is more information than is manageable, of lower quality than is needed. The alternative is an analysis-led model, where the purpose of analysis is not just to support field operations, but rather to design and guide a focused collection process.
Experience indicates that systematic analysis must be central for a successful and cost-efficient investigative cycle. Some surveys of agencies investigating nonorganized crime suggests an average ratio of one analyst to twelve investigators, while the Office of the Prosecutor of the ICTY reached a ratio close to one analyst to two investigators, and the relative weight of analysis is intended to be even greater for the ICC investigations.
Focus on Specific Intent and Contextual Elements
The legal definitions of genocide and crimes against humanity include elements that operate as qualifiers of gravity and restrictors to limit international jurisdictional intervention to extraordinarily offensive crimes. These are mainly the specific intent (for genocide) and the requirement of widespread or systematic commission and civilian condition of the victims (for crimes against humanity). Such elements are the hallmark of these international crimes, and usually the most difficult ones to investigate and to prove.
The specific intent of genocide is rarely manifested explicitly, and international jurisprudence has acknowledged that it can be inferred from the material events and circumstantial indicia. Concerning the elements specific to crimes against humanity, systematicity refers to aspects of organization and modus operandi, as well as to the functionality of the crime vis-àvis predetermined objectives. The widespread requirement is essentially a matter of scale, for which there is no clear quantitative threshold; however some parameters can be inferred from international jurisprudence. There is an ontological issue in proving the widespread scale, in that it requires ascertaining if a series of events do in fact constitute a single coherent entity, or if they are instead multiple autonomous entities. Objective answers to these aspects draw on crime pattern analysis, which is the set of analytical techniques utilized to identify significant correlations among large series of events (including systematic categorizations and statistics).
Reasons of probative value (quality and reliability of the evidence) procedural economy (easier and faster to handle) and security (to reduce the exposure of witnesses) advise prioritizing documentary evidence. In cases of criminal orders and related records, documents may be the corpus delicti itself, the instrument that materialized the crime and ultimate proof of its commission (as Vahakn N. Dadrian has observed regarding the documentary records of the Armenian genocide).
In Nuremberg, prosecutor Robert Jackson planned from the beginning to rest his case on documentary evidence and gave instructions to gather "documents such as military or political orders, instructions, or declarations of policy which may serve to connect high personalities with the actual commission of crimes." The Nuremberg judgment stated explicitly the importance of documentary evidence and quoted a whole range of original Nazi documents, from Hitler's Mein Kampf to different orders for the killing of prisoners and civilians. Compared to Nuremberg, in the Tokyo Trials documentary evidence was less significant because Japanese forces were more successful in the destruction of their documents. Similarly, documentary evidence was remarkably more relevant to ICTY than to ICTR (International Criminal Tribunal for Rwanda).
At the litigation stage the authenticity of the documents is often an issue in contest. The U.S. OSI in the 1980s systematically used Nazi archival records from various states. When confronted with evidence originating from the USSR, the accused often alleged that documents had been manipulated by the KGB and made necessary the use of different forensic methods to test their authenticity (generally with positive results). Similar allegations have been made in the hearings of the ICTY regarding documents tendered by the prosecutor, who most often has succeeded at proving their authenticity through testimony of the analysts who collected them and through evidence of their internal and contextual consistency.
Witnesses and Evidence Sampling
Witnesses are the soul of the proceedings. Without them the human suffering that originated the whole judicial effort could not be appreciated. Nevertheless, difficult decisions need to be made to limit and select the number of witnesses that can be considered, for pragmatic reasons related to limited court-time and resources, security, and the problems of secondary victimization and witness fatigue. It is best to anticipate these constraints from the beginning of the investigation, in order to optimize the choice of witnesses, and to focus on the most significant ones.
Such selection calls for careful design, in a way similar to the techniques of sampling in social empirical research, so that a subset of evidence can provide a valid representation of the whole universe to be proved. In the case of the Argentinean junta trials, prosecutor L. Moreno (who was in charge of investigations in 1984 and in 2003 was appointed the first ICC prosecutor) choose 700 individual cases from the National Commission on the Disappeared (CONADEP) data with the aim of representing a scope of several thousands of victims of "all armies, of all periods, and the whole country." Typically, at the litigation stage the defense will try to challenge the validity of the sample, arguing that the evidence in question is not representative, but rather anomalous or exceptional, which highlights the need for strict methodology and objectivity in the process of choosing the witnesses.
The Importance of Insider and International Witnesses
Experience indicates that insiders and internationals are among the most valuable witnesses. The former are important because of their ability to establish the intimate de facto functioning of the criminal apparatus, and the latter because of the panoramic knowledge of criminal patterns and their enhanced credibility (particularly before international judges).
Insiders were already considered in the Ottoman investigations. There was, for example, General Vehib, who gave testimony on the assassination of some two thousand Armenians and his knowledge about a broader scheme of extermination. International witnesses have been used in many cases, from the missionaries that testified in Tokyo about "the rape of Shanghai," to numerous similar witnesses that have appeared before the chambers of the ICTY and ICTR (including field workers of NGOs and international organizations, journalists and peacekeepers). Often the testimony of these witnesses is supported by the reports that they produced at the relevant time (a technique already utilized in the Tokyo Trials and greatly exploited before the ad hoc tribunals). However, some organizations are reluctant to authorize the testimony of their officers for reasons of confidentiality and security.
Interviewing an insider or a suspect is a particularly difficult task, and often one with controversial results. In Nuremberg Nazi officers were initially interrogated with a highly formal and confrontational approach, conducted by attorneys through interpreters. This was soon replaced with a friendly and informal approach trusted to a team of native speakers who interacted with the interviewees in German, which proved more effective. In the case of R. Hoss (the Auschwitz commander), the officers that conducted his first interrogation in Poland were convinced of his sincerity, while subsequent research proved that they had failed to distance themselves sufficiently from the interviewee, and Hoss had been fairly truthful concerning the crime as such, but had lied systematically concerning his own role.
The interrogation of Eichmann was conducted by a German-born person, who communicated with the accused in German and was assisted by a team of officers from all the different countries relevant to the case. Initially they encountered a very common problem in this type of interviews, which was that the interviewee was more well-versed in the subject than they were, and hence was in a position to control the exchange.
Some historians have observed that the interrogators imposed some preconceptions on the Nazi organizations, through a series of leading questions that prevented more objective findings. In the case of General M. Carmel, his denial of any responsibility concerning massacres and mass expulsion of Palestinians in 1948 was disproved years later when the researcher who interviewed him (Benny Morris) could gain access to the relevant documentary evidence.
The cases above exemplify the problems of cognitive control, leading questions, and language issues, as well as the untrustworthy behavior of the suspects, that are all too common in every investigation and the international tribunals have faced in numerous occasions. The solutions typically result from a measure of teamwork to master the broad and complex issues at stake. In this way, investigators can establish a distance from the interviewee, and prevent any bias caused by empathy, confronting the interviewee as much as possible with documentary evidence, and keeping a literal record of the statement, to assure utmost accuracy and to be able to confront the source.
Most often international crimes are caused by powerful organizations that may remain active and will have an interest in sabotaging the investigations through means of intimidation or outright attack. For this reason, the requirements of security for the witnesses, the investigating personnel and the evidence need to be anticipated and duly handled. Witnesses are likely to ask for protective measures as a pre-condition to collaborate, in which case the investigating officer has to first of all not promise or create unrealistic expectations beyond the available means, and then assess carefully the merits of such request, because protection measures are always subject to constraints of procedure and resources.
Witness protection programs have developed since the 1980s, most typically for insiders in cases of organized crime, in Italy (for the mafia "pentiti"), the United States, and other countries. Similar programs have been established by the UN ad hoc tribunals, also focused often on insiders or particularly vulnerable witnesses. In Colombia the national witness protection program devotes much of its work to cases related to armed groups. In one notorious case in 2001, a former member of a paramilitary group was located and killed in spite of being under the strictest level of protection granted by the national prosecutor. Measures to protect the identity of the witnesses during proceedings have been used frequently, among others, by the ad hoc tribunals, and war crimes cases in Colombia but, as a matter of due process, they will need to be reconciled with the rights of the accused to know the identity of the accusing witnesses.
SEE ALSO Evidence; Forensics; International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; Mass Graves; Nongovernmental Organizations; War Crimes; World War I Peace Treaties
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Xabier Agirre Aranburu
The author contributed in his personal capacity. The views expressed in this article are based on public information and do not represent those of theICTY nor the ICC.
in·ves·ti·gate / inˈvestiˌgāt/ • v. [tr.] carry out a systematic or formal inquiry to discover and examine the facts of (an incident, allegation, etc.) so as to establish the truth: police are investigating the alleged beating. ∎ carry out research or study into (a subject, typically one in a scientific or academic field) so as to discover facts or information: future studies will investigate whether long-term use of the drugs could prevent cancer. ∎ make inquiries as to the character, activities, or background of (someone): everyone with a possible interest in your brother's death must be thoroughly investigated. ∎ [intr.] make a check to find out something: when you didn't turn up, I thought I'd better come back to investigate.DERIVATIVES: in·ves·ti·ga·tor / -ˌgātər/ n.in·ves·ti·ga·to·ry / -gəˌtôrē/ adj.
in·ves·ti·ga·tion / inˌvestiˈgāshən/ • n. the action of investigating something or someone; formal or systematic examination or research: he is under investigation for receiving illicit funds. ∎ a formal inquiry or systematic study: an investigation has been launched into the potential impact of the oil spill.DERIVATIVES: in·ves·ti·ga·tion·al / -shənl/ adj.
Investigation ★★½ 1979
A Frenchman plans to murder his wife so he can marry his pregnant mistress, guaranteeing an heir. Subtle study of small town people so concerned with their own welfare that the dirty deeds of the lead character might be overlooked. Fine performances and story development make this worth investigating. In French with English subtitles. 116m/C VHS . FR Victor Lanoux, Valerie Mairesse; D: Etienne Perier.