In our modern age, hardly any international crime is kept from public scrutiny. Massive human rights violations can be shown by documentation, video and audio recordings, witness statements, maps or forensic information. But how are they transformed into a criminal case? This is what we sill study now. Building a criminal case requires several steps. Collection & analysis of material, investigation and a formation of a case theory. This process is extremely complex in the context of international crimes. We will find out why in this video. The first step is the collection of information and material. Prosecutors receive a lot of information from different providers, such as states, NGOs, individuals, or fact finding bodies. Even national or local media can serve as an important source. There are multiple cases in which persons made media appearances in which they boasted about military operations or crimes. But not all information necessarily becomes evidence. In fact, much of the information collected by international criminal courts and tribunals does not end up in judicial proceedings. The selection of material for criminal cases requires analysis, selection, verification, and testing. Only information and material that is relevant, credible, accurate, and reliable, can be used as evidence in court. So what type of evidence do prosecutors use? There are two types of evidence, direct or circumstantial evidence. Only some information may provide direct evidence of a crime. A typical example is a video which shows perpetrators committing the crimes such as the video used in Lubanga or the famous video used in the trials of the Yugoslavia tribunal. Most evidence, however, is circumstantial. This means that it provides bits and pieces of information that tell a broader story if they're seen in context with other elements. A good example is the Srebrenica investigation. The massacre was reconstructed through forensic evidence together with other circumstantial factors that proved the modalities and the location of killings. The conditions for taking evidence are often poor in the case of international crimes. This is why international criminal courts and tribunals typically rely on a combination of different forms of evidence. Documentary evidence, witness evidence and physical evidence. Documentary evidence is of key importance for framing a case. Documents are typically used to establish fundamental elements of the context of violence, to prove orders and commands, or establish state planes or policies. Documents have some advantages over witnesses. They are stable, they do not change their story. But the provenance and reliability the thoroughly established. Report from sources such as NGOs, human rights bodies or governments must be read with caution since they typically prepared to establish a historical record of events or to influence the action of policy makers rather than to make a cast at trial. Witness testimony is the second type of evidence. Witnesses may provide testimony on the context, the role of perpetrators, or specific aspects of the trial. ICC investigators have to ensure that they do not re-traumatize or endanger witnesses. Witness testimony comes with all the strengths but also the risks of human interaction. Testimonies can get lost in translation. Witnesses may have particular interests. Their memory may evolve. They may change narratives. Witnesses may withdraw their statements or refuse to testify because of threats that were made against them. The third category of evidence is physical evidence. It includes for instance forensic evidence and physical objects collected at the crime scene. Crimes are further increasingly documented to the use of new technologies, such as mobile phones. Whenever evidence is collected, it is important to track the origin and possession of information on evidence. This is called the chain of custody. It serves to demonstrate that no one interfered with the evidence. It is important to record what was collected or provided, who collected or received it, and where and when it was collected or received. Without demonstration of a chain of custody, evidence may not be usable in court. How does the prosecution build a criminal case? The prosecution typically gathers evidence in relation to three elements. The so called crime base which includes events and persons. The context, and the linkage of the perpetrator to the crime. This poses particular challenges in the context of atrocity crimes. The crime base can be very large, involving multiple geographical areas, hundreds of individual crime scenes, and many events and actors. It is usually impossible to investigate and prosecute all of the alleged crimes. Analysts and investigators must make a choice what to prioritize. Often certain incidents are used as a sort of case study in order to demonstrate a broader pattern of crimes. Certain categories of crimes, such as sexual and gender based crimes, require specific investigative methods. Second, the context is often difficult to establish, prosecutors must understand the big picture in order to formulate the case strategy. They may have to analyze not only the conduct of actors involved in the conflict, but also the role of the third parties. This may require investigation of financial strips. Establishing linkages as often one of the biggest challenges. It requires prosecutors to reconstruct authority structures, decision making processes, and exchanges of information and orders before and after the crime. This may be done for instance so testimony by so called insider witnesses. The right conduct of investigation is often complicated by certain context related factors. For example, the conduct of on site investigations is typically subject to domestic consent. Investigators often lack direct access to the territory and they may face security risks. Or hostilities from national authorities or certain local communities. This may limit on-site presence or contact with local communities and structures. Moreover, investigators have to deal with different cultures and languages. This requires mixed investigation teams. Some of these problems became evident in the first practice of the ICC. The prosecution faced difficulties to build cases. In the Lubanga case, the prosecutor collected detailed documentary evidence from the United Nations and from nongovernmental organizations. But more than 200 documents were provided under the condition of confidentiality. This meant that the prosecution had to reach agreement with the information providers to disclose all of that material. Additionally, the prosecutor had to rely on local intermediaries in order to get access to the evidence. This includes local NGOs or members of civil society. These intermediaries may often have their own interests. They're typically not subject to the same accountability standards as professional investigators or prosecutors. This use of intermediaries was challenged by the defense. The ICC had to adopt intermediary guidelines in order to prevent conflicts of interest and malpractice. It was also difficult to establish reliable witness testimony. In several situations, years passed between the original statement and the final testimony. This weakened the prosecution case. The prosecution was not allowed to rehearse witness statements prior to testimony. In the Lubanga case, witnesses retracted from their original statements. In the Kenyan situations, witnesses withdrew from their statements and proceedings again Kenyan vice president Ruto. There were allegations of witness intimidation. In an important decision, the ICC decided that trial judges can compel a country to produce unwilling witnesses to appear before the court. Let us now turn to the final step. How does the investigation lead to an actual case? In the course of the investigation, the prosecution forms different hypotheses in relation to the crime base, the context and the linkage. This leads to the formulation of a case strategy. It involves the identification of suspects, the formulation of specific charges, and the identification of modes of liability. These elements are typically formalized in the application for warrant of arrest or summons to appear. This marks the formal beginning of the case. What can we conclude from this? In this video, we've seen that building a criminal case. Is far more complex than the documentation of human rights violations. It requires not only collection of information and material but the actual translation into evidence. This is mainly done through the investigation. Secondly, we have seen that international criminal investigation, post specific operational challenges and conflict and post-conflict settings. They may compromise the building of a case that meets the standards of criminal proceedings. Third, we've seen that building a case requires a case strategy. It involves the identification of individual suspects, the crime base, and linkage elements. Individual elements of that strategy may be refined throughout the legal process. But prosecution becomes a problem, if that fundamentally in the course of proceedings. We will explore the different steps of the proceedings in our next video.
