The Nature of International Criminal Law and Implications for Investigations

Abstract

Violations of international criminal law are rarely committed in isolation. Frequently they are perpetrated in the context of a broader project or a massive upheaval consisting of numerous such violations. The context and scale of these events can create numerous logistical difficulties in conducting investigations.

Overcoming such difficulties can consume massive amounts of human, temporal, and material resources. However, in addition to these practical difficulties, other difficulties stem from the law to be applied in such cases.

All of these evidentiary challenges are in addition to those inherent in any criminal investigation, and they are magnified by the physical environments in which the crimes take place. Notwithstanding the difficulties encountered by the investigators of World War II atrocities, their task was simplified by the fact that the allies had police power throughout Germany after the war ended. This is not the case for today’s international criminal courts. For several years after the establishment of the Yugoslav Tribunal, investigators and prosecutors had little or no access to the crime scenes due to ongoing hostilities or lack of cooperation from local authorities. As this chapter is being written, prosecutors and investigators at the International Criminal Court have been unable to gain access to Darfur more than 18 months after the UN Security Council referred the situation there to the Court.

Any international criminal investigation must take into account this combination of legal, political, and logistical factors. A thorough understanding of international criminal law assists in the appreciation of their interaction.

Keywords: international criminal law, investigations, international crimes, crimes against humanity, war crimes, genocide