Prosecuting international crimes: expert meeting on the collaboration between national prosecuting authorities and non-governmental organizations
This article follows the first one concerning definitions of legal concepts and frameworks regarding the investigation of international crimes, the second one related to investigation policy and principles of cooperation and collaboration, and the third one on how to document information. As it is a joint publication, the same version can be found in French and Spanish on Quid Justitiae.
Once information has been gathered, its management raises multiple challenges regarding its definition and governing principles (A). The management of information requires several stages (B), while the chain of custody is a matter of particular importance (C).
A. Definition and governing principles
The management of information should be in place from the time it is collected in the field, to recording it in regular or general reports, to analysis of the information, to how to present the information in case specific reports. As a result, it includes issues related to information flow, confidentiality, data security while it is also necessary to develop a system for managing the information and analysis1Field Manual – MRM on grave violations against children in situations of armed conflict, pp. 31-34.. It implies managing risks to practitioners, to information and to victims and witnesses2International Protocol on the documentation of sexual violence in conflict, pp. 108-117.. Therefore, identifying risks means finding appropriate mitigating measures during the whole process of investigation3Field guide for Civil Society Documentation, pt. 7. The documentation process can be divided in five stages: 1. The action of first-responders; 2.The identification of the crimes; 3. The collection of information; 4. Management of information; 5. Usage of information.. From the beginning, the investigation plan should include principles and procedures concerning the capture, storage, management, confidentiality and disclosure of information and evidence4First-responders, p. 12: on the risk of disclosure..
Concerning storing and handling information related to sexual-violence5International Protocol on the documentation of sexual violence in conflict, pp. 202-210., storing key principles apply. First of all, storage and maintenance have to be defined before any information has been collected. Practitioners should also be aware of the legal requirements in the relevant jurisdiction regarding chain of custody and the specificities related to storing medical, legal or forensic evidence6Ibid., p. 204.. Then, practitioners have the obligation to keep safe and confidential any information collected about sexual violence in order to ensure its integrity and to not put anyone at risk. Furthermore, various storing requirements should be utilized depending on sensitivity and ultimate use and depending on the type of information. Finally, no information or evidence should be collected if it is not possible to guarantee or maintain the necessary facilities and systems to store it7Ibid., p. 203; s. p. 205: on manual storage system requirements and storing photographs and audio/video recordings in a safe manner; p. 206: on digital storage information.. As well, the information-capture and management systems and programmes should facilitate the entry, search and analysis of elements related to those specific crimes. Furthermore, data-entry staff and expert analysts should also be included in the awareness raising and capacity-building of the staff, in order to enhance the documentation process8Investigating CRSGBV against men and boys, p. 15..
B. Steps in management of information
The management of information requires several steps to be complete and effective. First, it is important to verify the information by assessing the reliability of the source; corroborating the information with that collected from independent sources and checking the information against factual background. Secondly, information should be organized in a consistent manner by applying identical standards of management, using case sheets, cataloguing and storing documents according to a specific order. Thirdly, witnesses and contact persons must be protected by ensuring informants are fully aware of potential security risks and respect for the principle of confidentiality. Fourthly, hard information must be secured. Therefore, information should be kept stored apart in a secure location; installed in a lockable filing cabinet; coded and distorted when needed. Documents, which are no longer needed, should be destroyed on a regular basis while important documents should have copies and be kept in separate and secure places. Fifth, electronic information should also be secured by using external storage devices, encrypting sensitive files, equipping computers with a boot-up password, reliable anti-virus, anti-spyware and firewall software. It is also necessary to ensure regular back up and be careful when resorting to cloud computing. Sixth, particular attention should be given to communication and online activity. Security of the lines of communication should never be presumed to be secure and any sensitive information should never be communicated by email, phone, radio or fax. Code words and public key encryption should be used for electronic communication, while a VPN or Tor navigator should be preferred when browsing online. Seventh, during transport of information, traveling route and means of travel should be considered beforehand whereas is it essential to remain discrete. Finally, personal security must be ensured by establishing security routines, studying contingency plans in detail, being alert and assessing risks regularly, avoiding compromising situations and going underground whenever there is a danger9Handbook on Civil Society Documentation, pp. 117-141: for a detailed presentation of each management step and the measures required or suggested..
C. Chain of custody
The chain of custody can be described as “the process of keeping a chronological paper trail documenting the collection, custody and transfer of evidence in order to demonstrate its integrity from the time it is collected to the time it is presented before a court or other accountability mechanism”10International Protocol on the documentation of sexual violence in conflict, p. 199.. It has to outline “accurately and in detail every handler of the information concerned, from source or origin to production”11Handbook on Civil Society Documentation, pp. 36-37.. It implies for those gathering information to be familiar with the legal requirements concerning this matter in the alleged relevant jurisdiction where crimes are documented. Maintaining the chain of custody of a document or item means for the practitioner recording how the document or item was collected, and whether and how the possession of the information was transferred between individuals and/or organisations. Several key steps need to be followed in order to maintain the chain of custody such as: labelling the piece of evidence appropriately; making comprehensive notes; placing the document or the item in an evidence bag, envelope or box; sealing the evidence bag or envelope and signing over the seal while attaching the notes taken to the evidence; finally, keeping a transfer log of any transfer of the document or item between individuals or organisations12Ibid..
The chain of custody of physical evidence related to sexual violence presents several specificities in addition to the general principles mentioned above. Practitioners should be aware of the collection and packaging methods applicable to the item since they can vary between bodily fluids and pieces of clothing for example; include in the notes, besides how was the document or item collected, information about how soon after the incident of sexual violence the physical evidence was detected, how close in proximity to the location of the incident the physical evidence was noticed and how they know these facts; finally, conduct interviews with any witnesses near the site of violation and follow leads to other witnesses to the crime prior to collecting any item of physical evidence13Ibid., p. 200; s. also Annex 9 of the International Protocol on the documentation of sexual violence in conflict for an example of a chain of custody form..
It is important to emphasize that international criminal courts and tribunals tend to be less strict in admitting documentary information as evidence than national courts. Indeed, they may admit as evidence any piece of information deemed to be of sufficient probative value14Handbook on Civil Society Documentation, pp. 62-63.. Therefore, depending on the jurisdiction in which the investigation is conducted and the national tribunals that could be competent on crimes documented, it is necessary to have knowledge of the national criminal system and its requirements regarding means of proof in trial. The chain of custody regarding source and context of information and evidence is a crucial matter. Unofficial investigators can become the custodians of documentary information if they collect the document themselves, becoming its first custodian or by receiving the document from another person. Nevertheless, hard copy documents could have no evidentiary value to official criminal investigators if the source and the context of the document cannot be determined15Ibid., p. 63.. One way to overcome this obstacle is the establishment, at the beginning of an investigation, of standardized chain of custody summary sheets that will be used meticulously for any information, evidence, document or any other item collected16Ibid., p. 66 for another example of chain of custody summary sheet.. Besides the fact precaution that could be a deciding factor in case of prosecutions, it is also necessary to take pictures of the crime scenes and of the documents or items found in their original location, making copies and protecting any potential forensic information17Ibid., pp. 67-68..
Please cite this article as: Silviana Cocan, Joseph Rikhof, and Érick Sullivan, “Prosecuting International Crimes Series: Management of Information” (2018) 2 PKI Global Just J 19.
About the Drafting Team
Silviana Cocan is completing a joint doctoral degree at the Faculty of Law of Laval University and at the Université de Bordeaux in France. Her doctoral thesis is on the dialogue between jurisdictions and quasi-juridictions protecting human rights, especially as it relates to the prohibition of torture and other cruel, inhumane or degrading treatments. Silviana is participating to the Clinique de droit international pénal et humanitaire at Laval University.
Globally-recognized as an expert in cases of war crimes, Dr. Joseph Rikhof was with the Crimes Against Humanity and War Crimes Section of the Canadian Department of Justice and teaches International Criminal Law in the Faculty of Law at University of Ottawa. Dr. Rikhof was a visiting professional with the International Criminal Court in 2005 and Special Counsel & Policy Advisor to the Modern War Crimes Section of Canada’s Department of Citizenship and Immigration between 1998 and 2002. Extensively published, Dr. Rikhof lectures around the world on organized crime, terrorism, genocide, war crimes, and crimes against humanity.
Érick Sullivan is a lawyer and the Deputy-Director of the Clinique de droit international pénal et humanitaire since September 2012. He worked as a research assistant for the Clinic for two years prior to being promoted as Deputy-Director. He is a law graduate from Laval University (LL.B., 2009) and completed an internship at the International Criminal Tribunal for Rwanda in 2010 as part of the Defence team of Callixte Nzabonimana and under the supervision of Me Philippe Larochelle. He collaborated to the intervention of the Groupe d’études en droits et libertés de la personne of the Law Faculty of Laval University before the Supreme Court of Canada in the Momin Mohammad Khawaja case.
Translation team: Silviana Cocan, Maria Belén Gallardo Rivas, Maxime Mariage, Marie Prigent, Alicia Pujol
References [ + ]
|1.||↑||Field Manual – MRM on grave violations against children in situations of armed conflict, pp. 31-34.|
|2.||↑||International Protocol on the documentation of sexual violence in conflict, pp. 108-117.|
|3.||↑||Field guide for Civil Society Documentation, pt. 7. The documentation process can be divided in five stages: 1. The action of first-responders; 2.The identification of the crimes; 3. The collection of information; 4. Management of information; 5. Usage of information.|
|4.||↑||First-responders, p. 12: on the risk of disclosure.|
|5.||↑||International Protocol on the documentation of sexual violence in conflict, pp. 202-210.|
|6.||↑||Ibid., p. 204.|
|7.||↑||Ibid., p. 203; s. p. 205: on manual storage system requirements and storing photographs and audio/video recordings in a safe manner; p. 206: on digital storage information.|
|8.||↑||Investigating CRSGBV against men and boys, p. 15.|
|9.||↑||Handbook on Civil Society Documentation, pp. 117-141: for a detailed presentation of each management step and the measures required or suggested.|
|10.||↑||International Protocol on the documentation of sexual violence in conflict, p. 199.|
|11.||↑||Handbook on Civil Society Documentation, pp. 36-37.|
|13.||↑||Ibid., p. 200; s. also Annex 9 of the International Protocol on the documentation of sexual violence in conflict for an example of a chain of custody form.|
|14.||↑||Handbook on Civil Society Documentation, pp. 62-63.|
|15.||↑||Ibid., p. 63.|
|16.||↑||Ibid., p. 66 for another example of chain of custody summary sheet.|
|17.||↑||Ibid., pp. 67-68.|