Innovative Approaches to atrocity /international crime investigations

A Practitioner's Reply to Professor Alexander Heinze’s “Evidence Illegally Obtained by Private Investigators and its use before International Criminal Tribunals” [1]

John McManus*

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The purpose of this article is to address the concerns raised by Professor Heinze regarding the use of evidence illegally obtained by private investigators and used in International Criminal Tribunals (ICTs) to convict accused.?The case law demonstrates that these concerns are overstated, as ICT decision makers apply the same procedural rules when weighing the probative value against the prejudicial effect of evidence being led at trial regardless of the source of that evidence, and have demonstrated an ability and willingness to limit the use of, or exclude evidence the admission of which would bring the reputation of the international criminal justice system into disrepute. Private investigators provide an essential contribution to the international criminal investigatory process by collecting evidence which is beyond the capacity of public investigators to obtain.?Experience to date demonstrates that their efforts are legitimate, and the evidence uncovered valuable. ?Since the unexpected creation of the ICTY by the UNSC in 1993, men and women of courage and creativity have worked to expand efforts to address impunity for atrocity crimes through the use of law.?That creative spirit must be allowed to continue to find new and innovative ways to meet the challenges of international criminal investigations while maintaining respect for the fundamental tenets of International Human Rights and International Criminal law and procedure.

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Introduction

Professor Alexander Heinze’s recent article: “Evidence Illegally Obtained by Private Investigators and its use before International Criminal Tribunals”, as the name suggests, raises concerns related to the use of evidence illegally collected by private investigators which is then used in International Criminal Tribunals (ICTs) to convict an accused.?A reply is in order, if for no other reason than to reassure Professor Heinze that the use of evidence in international prosecutions which has been gathered by private investigators poses less of a threat than he envisions.

The mischief the author addresses in this paper is the perceived threat posed by the use of illegally obtained evidence to convict an accused, and more particularly, evidence illegally obtained by private investigators.?He sees the potential damage occurring on two levels: that an innocent person could be convicted, and use of such evidence would impact negatively upon the public’s perception of the criminal law process and judicial legitimacy.?What lies at the base of Professor Heinze’s concern is the fear that private investigators may not be governed by an International Criminal Tribunal’s (ICT) procedural rules.?It should be noted that the author is addressing those few cases where evidence is collected in breach of an individual’s human rights, either intentionally or inadvertently, and not evidence properly collected, processed, and protected.

Professor Heinze sets the tone of his paper by opening with: ?

Considering the importance of private investigators for the administration of International Criminal Tribunals (ICTs), potential dangers of such a cooperation easily take a backseat in a car that is driven by the anti-impunity agenda. (pg. 213)

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It is difficult to discern, at least on the face of it, why Professor Heinze links the “anti-impunity agenda” with private investigators, much less why he feels that private investigators pose a greater “potential danger(s)” (in the abstract) to the administration of ICTs than public investigators or anyone else acting in the public domain. Private investigators do play an increasingly important role in the international criminal justice system, but not nearly as important a role as public investigators.?While in many instances, for reasons related to their in-depth knowledge of local conditions, their higher risk tolerance, the need for discretion during preliminary inquiries and the protection of the identity of potential witnesses, private investigators initially play an essential role in the uncovering of lead evidence, ultimately it is up to public sector (ICT) investigators and lawyers to obtain and vet the evidence which will be used in court.?Under the direction of the ICC Prosecutor, ICC investigators are legally responsible, “[i]n order to establish the truth, [to] extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.”[2] Normally, the core of the evidence which supports convictions in ICTs (that is, the linkage evidence) is gathered by their own investigators, and it, like all evidence, is subjected to the prosecution’s analytical process, the defence’s critical challenges and the judicial assessment of, inter alia, the circumstances surrounding the collection of the evidence, to determine its dependability and to balance its probative value against any prejudicial effect the admission of that evidence might have on the fairness of the trial and in the interests of justice.

Every criminal law system, domestic or international, is driven by an “anti-impunity agenda”.?At its simplest, people do not want criminals to get away with committing crimes.?Every student who has taken a criminal law course has been taught the purposes of criminal law enactment and enforcement.?There may be slight variations in the lists, but essentially, the overarching purpose of the practice of criminal law is to end impunity for crimes by:

??Punishing the perpetrator;

??Providing the victim with a measure of satisfaction;

??Reducing desire for revenge;

??Ensuring the State’s laws and underlying values, [or, in this case, international human rights-based laws and values], are respected;

??Demonstrating the State’s (and people’s) abhorrence for the offence; and

??Establishing precedent to guide future behaviour.

While the crimes being investigated and prosecuted at the international level are of a significant magnitude greater than most domestic crimes, the core rationale for the work of the international criminal law community is driven by the same impetus.[3]?It is difficult to understand why ?Professor Heinze would suggest that the desire to address impunity would somehow entice private investigators into conducting nefarious operations, any more than it would likewise entice public investigators. To proffer such an unsupported slight against one minor group within the investigative and judicial process (i.e.: private investigators), when the grounds for the apparent slight (i.e.: the intent to address impunity) apply to all people involved in the process, and is a foundational purpose of the process, makes very little sense.

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[Level 1 Head] Three Instances

In his introduction, Professor Heinze points to three instances of “illegal conduct by private investigators”. (pg. 214) Two of those instances are related to the ICC Lubanga case, one where ICC intermediaries allegedly paid witnesses to lie,[4] and the second where Prosecutors failed to disclose exculpatory evidence.[5]?The third instance concerns ICTY defendant Nikolic, his capture in the Federal Republic of Yugoslavia (FRY) and transport by ‘unknown individuals’ into Bosnia and the waiting arms of the Stabilisation Force, which promptly turned him over to the Tribunal.?Aside from these examples and references to other instances of questionable activity, almost exclusively undertaken by public actors, scattered throughout the paper, Professor Heinze fails to provide a concise definition of what he considers “illegal conduct”, or to address the fact that the examples of “illegal” conduct he identifies lie on a sliding scale from the innocuous to the criminal.?It is therefore necessary to delve a bit deeper into the facts surrounding these three instances to glean a more detailed knowledge of what he is referring to.

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[Level 2 Head] Witness Influencing

Several things should be noted about the worrisome first Lubanga instance, where the issue before the Chamber was the Defence’s argument that, in light of evidence that certain intermediaries had counselled witnesses to provide false evidence, the OTP should be required to disclose to the Defence the identities of all the intermediaries used during the investigation.

First, the evidence presented in support of the request identified only three of the 23 individuals or organizations which had provided witness contact information to the OTP as having counselled witnesses to lie.[6]

Second, the individuals in question were not “investigators” but rather “activists” who were familiar with the pertinent events and their locations and who, as a result, were able to help OTP investigators establish contact with individuals who might be able to provide assistance to the investigation. They played no role in the actual collection of evidence.[7]?At first only their expenses were covered, but eventually some were paid a stipend for their work. It follows that these intermediaries were not private rogue investigators acting on their own, but rather contractors, or at least agents of the Court, called upon, not to gather evidence, but to provide assistance to OTP investigators as they began gathering evidence.[8]?The OTP stated in its pleadings that it undertook “… ‘considerable effort’ to ‘identify and evaluate’ the reliability, knowledge and integrity of intermediaries, and their ability to perform the role discretely…”.[9] This is borne out by the testimony of former Team Leader Bernard Lavigne, called by the Prosecutor at the request of the Defense, and upon the order of the Chamber,[10] to provide information concerning the work of intermediaries and their relationship to the Court.[11]?

Third, among the witnesses contacted by two of the intermediaries of concern, intermediaries 143 and 316, were witnesses whose evidence fell under ICC Article 67(2) [“evidence which tends to show the innocence of the accused or to mitigate the guilt of the accused…”] or were “material to the preparation of the defence”. This was true of “most, although not all of the intermediaries”.[12] While the evidence does suggest that in some cases the intermediaries did advise some witnesses to lie in order to obtain money or opportunities for schooling, the evidence indicates that in most cases either the intermediaries did not do so, or the witnesses ignored the advice. This strongly argues that the intermediaries were seeking witnesses who would help to establish the facts, and not only those who would assist a particular side in the case.

Fourth, while the OTP did fight to protect the identity of the intermediaries in part because disclosure would undermine the OTP’s ability to conduct discreet investigations[13] (which Professor Heinze suggests is somehow nefarious), (pg. 213) the Prosecutor’s arguments also focused on the importance of maintaining the safety and security of the intermediaries and witnesses,[14] an assertion repeatedly emphasized by former Team Leader Lavigne in his testimony.[15]

Fortunately, relying on Articles from the ICC Statute and Rules of Procedure and Evidence which were enacted for this purpose, and after reviewing the submissions of the OTP, Defence counsel and the Legal Representatives, the Chamber ordered:

??the disclosure to the Defence, in confidence, the identity of one Intermediary (143) once protective measures were in place;

??the Prosecutor to call the two targeted intermediaries (316 and 321) following the Defence’s calling witness evidence relevant to the abuse of process allegations;

??the Prosecutor to provide the Defence, in confidence, with a short account of the three identified intermediaries’ professional backgrounds;

??the Prosecutor to call an appropriate witness to provide evidence related to the process of identifying and hiring intermediaries (that witness being former Team Leader Lavigne); and

??the Prosecutor to provide a chart identifying the links between all intermediaries, between the intermediaries and witnesses, and between witnesses.[16]

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[Level 2 Head] Evidence Withholding

The second Lubanga-related instance cited by Professor Heinze concerned the refusal of the Prosecutor to disclose potentially exculpable evidence obtained, for the most part from the UN, under Article 54(3)(e) of the ICC Statute.?The Article governs information provided to the Prosecutor under an agreement that it would be used as lead evidence only (to generate further evidence), and prohibits disclosure of said information barring consent from the provider. The Prosecutor’s repeated efforts to obtain disclosure consent proved futile.

The Prosecutor argued that “the UN had provided general materials to the prosecution pursuant to the confidentiality agreement, and thereafter the prosecution had selected the evidence to be used in the trial and the items that were to be treated as lead evidence. The prosecution accepted that at the material time, there had been a clear understanding that these materials were likely to be used as evidence.”[17] The Chamber chastised the Prosecutor, finding that “the prosecution has given Article 54(3)(e) a broad and incorrect interpretation: it has utilised the provision routinely, in inappropriate circumstances, instead of resorting to it exceptionally, when particular, restrictive circumstances apply. Indeed, the prosecution conceded in open court that agreements reached under Article 54(3)(e) have been used generally to gather information, unconnected with its springboard or lead potential.”[18]

???????????As in the first Lubanga instance cited by Professor Heinze, it is difficult here to determine why the author would find this to be an example of the dangerous use of evidence illegally obtained by private investigators leading to an unjust conviction and the undermining of the international criminal legal order.?There is no indication as to who originally collected the information in the field - UN (public) officers or members of private NGOs.?There is no evidence pointed to by Professor Heinze that would suggest that whoever initially collected the information in the field acted “illegally”, although it is likely that the full panoply of protective procedural measures required during criminal investigations were not employed, as one can assume that the purpose of the information collection was other than as part of a criminal investigation.?This would explain why the OTP saw the primary purpose of the information was to lead investigators to other evidence.?Finally, while it is evident that the members of the Prosecutor’s office (public sector investigators) were overly hasty in their initial information gathering efforts (at no time was anyone even accused of acting “illegally”) by misusing the Article 54(3)(e) provisions, the Prosecutor’s office was in fact complying with the terms of ICC Article 54(3)(e) by not disclosing the information. The bottom line is that there was no evidence that the information was illegally obtained, and that the only “impropriety” was the overbroad use of Article 54(3)(e) by the Prosecutor.?The issue before the Chamber was the Prosecutor’s inability to properly disclose the information to the defendant.

In the event, Trial Chamber I reviewed the arguments and explanations of the Prosecutor, Defense and Witness counsel, as well as the pertinent Statute and Rules articles, and held that:

??The disclosure of exculpatory evidence in the possession of the prosecution is a fundamental aspect of the accused’s rights to a fair trial;

??The prosecution had improperly used Article 54(3)(e) to obtain evidence that, in the circumstances, could not be disclosed to the Defence, thereby inhibiting him from preparing his defence;

??The non-disclosure prevented the Chamber from exercising its jurisdiction to determine whether or not the non-disclosure constituted a breach of the accused’s right to a fair trial; and,

??As a result, the trial process had been ruptured to such an extent that a fair trial was impossible.

The Chamber reluctantly imposed a stay on the proceedings.[19]

As pointed out above, neither of these two examples are evidence of widespread illegal behaviour by private investigators. In fact, there is no evidence that “private investigators”, strictly speaking, were involved in either situation. This has been affirmed to this author by an investigator who was intimately involved in both instances.?What is clear from these two examples is that the Court and Chambers are more than capable of hearing evidence related to allegations of misconduct by investigators or, in this case, a breach of procedural rules and, using the tools at its disposal, addressing the issues squarely, effectively, and fairly.[20]

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[Level 2 Head] Kidnapping an Accused

The third example proffered by Professor Heinze – the capture and transport of the wanted fugitive Nikolic across the Bosnian border and into the hands of the Stabilisation Force – also seems to fall outside of “evidence gathered illegally by private investigators”.?Professor Heinze argues that Nikolic’s abduction and transfer across the border breached his fundamental human rights, and, by arresting him following the transfer, SFOR and consequently the Tribunal itself, participated in that breach.?He concludes that, given these circumstances, the Tribunal should have refused to exercise jurisdiction over him.?

???????????However, Nikolic wasn’t evidence, he was a fugitive, the subject of an arrest warrant properly issued by the ICTY, operating under Chapter VII of the UN Charter.?The identity of the people who captured him, and whether they were public officials or private individuals, remains unknown, although according to both Prosecution and Defence counsel, they were tried and convicted in Serbia for their actions,[21] one of the possible “remedies” to deter investigator misconduct discussed and seemingly rejected as lacking effectiveness by Professor Heinze. (pg 231) ??On the facts agreed to by the parties, Trial Chamber II, after reviewing the relevant international and domestic case law found that, inter alia:

??there was no breach of Federal Republic of Yugoslavia’s sovereignty because the Tribunal was in a horizontal, rather than a vertical relationship with the FYR (the location of Nikolic’s capture) and the Tribunal played no role in the abduction;[22]

??the Nikolic arrest warrant issued by the Tribunal was a de jure order directed to all members of the United Nations;[23]

??had Nikolic been returned to the FRY, the FRY would have been obliged, given the nature and source of the warrant, to immediately return him to the Tribunal;[24]

??once the accused “had ‘come into contact with SFOR’, SFOR was obliged [given the outstanding warrant and SFOR’s responsibilities under the North Atlantic Council] to arrest, detain and transfer [Nikolic] to The Hague”;[25] and,

??the facts agreed to, “do not at all show that the treatment of the accused by the unknown individuals was of such an egregious nature” as to require the Chamber to relinquish jurisdiction over him. “The allegations that his human rights have been violated or that proceeding with the case would violate the fundamental principle of due process of law are rejected.”[26]

In this example, there was no determination as to whether Nikolic was kidnapped by “private investigators” or by government actors – and one is well to remember the facts of the Eichmann capture.?While it is clear from the Decision of Trial Chamber II that the law regarding the legality of a court exercising jurisdiction over a kidnapped accused brought before it remains unsettled and is in large measure dependent on the particular fact situation, it is also clear that the Chamber determined, after examining the facts and considering the law and precedent, that exercising jurisdiction was appropriate in this case.?And, given the facts and the meticulous Decision, it is unlikely that the exercise of jurisdiction in this case impacted negatively upon the public’s perception of the criminal law process and judicial legitimacy.?In fact, quite the opposite is likely true.

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[Level 2 Head] Paying informants

Professor Heinze concludes his introduction with the following:

After all, it has become public that the OTP of the Special Court for Sierra Leone had an extensive practice of paying both informants and witnesses in return for information and statements. The scenario is thus real and can be transferred to the private level. Or even more extreme: the investigator tortures that witness to get the desired information. (pg. 214)

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???????????Is it even necessary to point out that the OTP investigators were not “private investigators”,[27] that there is no logical basis for supporting the “transfer” of the actions of a particular practice of public OTP investigators in Sierra Leone (and only in Sierra Leone) to private actors generally, and that it is an unconscionable leap from SCSL OTP investigators allegedly paying an insider witness to private investigators torturing witnesses? No evidence of this, or any illegal activity by private investigators even approaching this level of crime, is presented by Professor Heinze.

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[Level 1 Head] International Criminal Investigations and their Impact on Prosecutions

Despite various misgivings about the examples provided by Professor Heinze in his Introduction, he does make a number of very interesting points concerning international criminal investigations which deserve comment.

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[Level 2 Head] Investigatory context

Professor Heinze correctly points out that investigations of gross international crimes are complex, identifies three potential contexts of said investigations, and raises concerns about the use of “illegal” evidence in each context.

The first investigatory context is the inter-investigatory context (where international and domestic investigations merge). (pgs 215-218) In the ICTY case cited by Professor Heinze,[28] the Trial Chamber recognized that, as a general rule, any evidence which has probative value may be admitted, but “where the probative value of such evidence is substantially outweighed by the need to ensure a fair trial, it ought to be excluded”, (para. 35) which is exactly what the Tribunal eventually did.[29] Equally, in the ICC case cited by Professor Heinze, the statement from the accused taken by domestic investigators unconnected to the Court was ruled inadmissible because the accused did not have proper access to counsel, the test being whether the evidence was “obtained in violation of internationally recognized human rights or the [ICC] Statute”,[30] regardless of who collected it. It is fair to state, and the examples prove, that remedies for breaches of fundamental human rights by investigators unconnected to the ICT remain available, and have been used by ICTs, depending on the nature and gravity of the breach, including the exclusion of any evidence collected as a result of the breach. The exclusion of this evidence, could, in practical terms, result in a dismissal of charges for want of evidence.?Professor Heinze finally concludes that this context was “the least problematic.” (pg. 229)

The second investigatory context is the intra-investigatory context (where a private investigator’s work is attributed to the ICT either prior to the collection of evidence (ab initio), as in the Lubanga situation discussed above, or ex post facto). (pgs 215, 218-219) This context is of little importance here as the investigators are linked to the ICT and as such, are considered “public”. (pg. 229) In such cases, the full array of remedies is available to the ICT for breaches of international human rights.

The third investigatory contrext is the extra-investigatory context, where evidence is collected by a private individual outside any ICT investigation. (pgs 215, 219-220) Professor Heinze’s primary focus of concern is on this context, referring to it as “the neuralgic point of exclusionary rules applied before ICTs”. (pg 229)

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[Level 2 Head] Imposing a stay as a remedy

Professor Heinze raises the concern that ICC Pre-Trial and Trial Chambers have determined that where a breach of an accused’s fundamental rights occurs at the hands of domestic investigators with no link to the Court, a stay of proceedings is not available. (pgs 217, 218) As he rightly points out, ICC Article 69(8) prohibits the Court from ruling on the application of a State’s national law (pg. 216) and various ICTs have noted that they are not bound by domestic investigatory law and practices. (pg. 216) This is fully in accord with the rules regarding international comity, and so is “unsurprising” as Professor Heinze notes. He recognizes that in the inter- and intra-investigatory contexts, breaches of fundamental human rights can in most cases be attributed to the Court, and so the full array of remedies remains available.?However, citing the decision of Pre-Trial Chamber I in the ICC Gbagbo case, an extra-investigatory context, he notes that “the violation of the rights of the defendant during his detention in the state and prior to his transfer to the ICC has an impact on the trial (with the result that a stay may be imposed) only insofar as the violation can be attributed to the Court.” (pg. 218) In this instance, Mr. Gbagbo had been arrested and detained by Ivorian authorities on economic-related charges prior to those authorities receiving the ICC’s request for arrest and surrender, which was responded to promptly and in accordance with applicable procedural laws. Mr. Gbagbo claimed that his fundamental human rights related to his initial arrest and detention had been breached. The Pre-Trial Chamber determined that on these facts, there was no “involvement on the part of the Court in the detention of Mr. Gbagbo.”[31]?Essentially, the extraordinary remedy of a stay will not be available in those cases where an accused’s fundamental human rights are breached by people (in this case public authorities) operating at arm’s length from the Court, and over whom the Court exercises no control.?What remains available to the Court, as demonstrated in the cases referred to above, are all other remedies, which could be used, inter alia, to deny admissibility of any evidence obtained by that arm’s length breach; something the Court does exercise control over.

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[Level 2 Head] Who is Bound by the Rules?

What follows in Professor Heinze’s paper is a lengthy, interesting, and somewhat philosophical discussion on who is bound by procedural rules, (pgs 220-230) particularly in the extra-investigatory context, which Heinze describes as a “wide ranging controversy”. (pg. 229) He discusses the relationship between procedural and substantive law, (pgs 221-222) the nature of exclusionary rules, (pgs. 222-225) and the criminal process as a system, (pgs 225-229) concluding that “the addressee of procedural law is the [international criminal] process as a system”, which encompasses “everyone who is involved in the investigatory process when this involvement eventually has an effect on Due Process”, including private investigators. (pg. 229)

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[Level 2 Head] Excluding Illegally Obtained Evidence

Professor Heinze follows this up with a lengthy review of “Rationales for the Exclusion of Illegally Obtained Evidence before the ICTs in the Face of Private Conduct”, (pgs 230 - 252) a review necessitated, according to Professor Heinze, because of the “controversy around the application of exclusionary rules to the extra-investigatory context”. (pg. 230) It is an interesting review and discussion within the extra-investigatory context, addressing such issues as the deterrence effect of law, (pgs 230-232) remedies, (pgs 232-234) the integrity of the investigatory and judicial process (an essential consideration in Professor Heinze’s view), (pgs 234-242) and ultimately, the rule of law. (pgs 242-252)?

At the heart of exclusionary rules within the extra-investigatory context lies the integrity of international criminal procedure itself. Illegally obtained evidence by private individuals questions the moral authority of the verdict and its legitimacy. The evidence may be unreliable. Admitting such evidence might violate the rule of law. These are the raw claims. The basis of the integrity of the process is fairness […] . (pg. 234)

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It goes without saying that illegally obtained evidence by public individuals (assuming that it is admitted – its existence independent of trial is a non-issue here) also questions the moral authority of the verdict and its legitimacy, as it may be unreliable, and admitting such evidence might violate the rule of law.?Thankfully, the case law[32] demonstrates that courts and judges are well aware of these concerns and use exclusionary rules to ensure the fairness of trials and the integrity of the judicial process.

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[Level 2 Head] Investigatory and Judicial Processes

The most interesting and pertinent discussion concerns whether the investigatory process is separate and distinct from the judicial process. (pgs 243-252) Professor Heinze supports the position (correctly, at least for the purposes of this review) that the two processes are so interdependent that they must be seen as two stages of a single, unified process, (pg. 253) particularly given that, at least at the international level, investigations often continue following the commencement of the judicial process. Any efforts to separate the two stages would be artificial.?Professor Heinze concludes that as a result of this single-process concept, any investigatory act must be conducted in accordance with the ICT’s procedural rules, as the process of finding, collecting and maintaining evidence will ultimately have an impact on the fairness of the trial and the public’s confidence in the international criminal law system.?More precisely, Professor Heinze argues that evidence exclusionary rules must apply to evidence obtained illegally by private individuals.

Illegally obtained evidence by private individuals questions the moral authority of the verdict and its legitimacy. The evidence may be unreliable. Admitting such evidence might violate the rule of law. The basis of the integrity of the process is fairness. Especially the juxtaposition of procedural and substantive fairness is vital for private investigations. A conviction that is based on unreliable evidence is not substantially fair. (Pg. 252)

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This message is emphatically repeated in Professor Heinze’s conclusion:

Integrity as integration, combined with the presumption that procedural rules are not merely addressed to actors but to systems and subsystems, allow for the application of exclusionary rules to private conduct. The status of the person collecting the evidence is not relevant for exclusionary rules, but the investigatory context is (within which both public officials and private individuals act). More concretely: whether exclusionary rules apply does not depend on the investigator but on the existence of an investigation. Context is key. (pg. 253)?

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Following this lengthy discussion, the reader remains uncertain as to why the author continues to revert to “private investigators” when the examples and discussion are based on activities of public actors working either for ICTs or at arm’s length from the Court in question.?While the issues require discussion, the distinction seems artificial.

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[Level 1 Head] Argument

While Professor Heinze presents a number of interesting and complex discussions, and comes to a number of eminently supportable conclusions, a great deal of the angst associated with what he deems to be a “philosophical controversy” can be side-stepped in practice by focusing not on the individual who collects evidence, but on the evidence itself.?The rules of procedure and evidence are, first and foremost, designed to assist Judges to determine the validity of the evidence presented, and the weight which can be assigned to that evidence. To clarify this position, it is helpful to ask: to what purpose do investigators (both private and public) gather evidence??The answer is rather simple: to obtain information and evidence regarding whether actions were undertaken in identified situations which amounted to legally defined crimes and which could be put to use during a criminal proceeding to determine the guilt or innocence of individuals for those crimes.?

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[Level 2 Head] Considerations

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[Level 3 Head] Information vs. Evidence

A distinction must be drawn between information gathered by individuals and organizations working on human rights issues, and evidence gathered by investigators for the purpose of prosecution. In addition to reports and papers issued from the numerous UN standing and ad hoc human rights-related organizations (e.g.: OHCHR), reports from private organizations such as Amnesty International, Human Rights Watch, Civil Rights Defenders and UN Watch are stacked like cordwood in investigators’, prosecutors’, defence counsels’ and Judges’ (or more likely their clerks’) offices. These reports are essential to understanding the particular situation under investigation, and to finding evidence proving the crime-base aspects of a prosecution. It is not evidence, but rather information used to lead public investigators to evidence which is obtained legally and according to procedural rules, and it is that evidence which is used at trial.?There is nothing irregular or “illegal” in this long-standing practice, it does not result in an unfair trial, and it does not bring the reputation of courts into disrepute.?Also, it is important to note, this practice is used by both prosecutors and defense investigation teams.

Most public criminal investigators working in the field are well trained in the rules of procedure and evidence generally speaking – rules are broadly similar in most ICTs and domestic jurisdictions - and in the specific context within which they work.?Those individuals enlisted by public (and private) investigators to assist in the initial stages of an investigation, while perhaps not fully and formally trained, are, for the most part, vetted, closely supervised and instructed by those who are.[33] Despite this, it is evident that, on occasion, rules are intentionally or inadvertently broken by public investigators, and the rights of defendants are breached.?However, experience and the case law demonstrate that any information which a party wishes to have admitted as evidence in court, regardless of who collects it, will be subject to intense scrutiny by both prosecutorial and defense counsel and learned judges, all of whom well and truly know the law, in order that such breaches are properly addressed.

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[Level 3 Head] A breach of Procedure Rules vs “Illegality”

One important lacuna in Professor Heinze’s paper is the lack of a concrete definition of “illegal” which would have helped focus the various discussions. While at some points he appears to argue that any breach of a fundamental human right during an investigation, no matter how (relatively) minor in nature (e.g.: the Mucic case briefly addressed at pgs 215-216, and the very similar Katanga case addressed at pg. 217), taints the evidence collected as “illegal”, at other times he seems to be focused on the more egregious breaches, often in the abstract, notably when he changes his terminology from “investigators” and “public officials” to “interrogator”. (pgs 231-232) Given the qualitative difference between an investigator inadvertently (or in some cases in accordance with domestic procedural law) failing to provide a full warning to a witness (which is not an “illegal” act) and an interrogator subjecting a hapless victim to torture, it would have greatly assisted the reader to understand Professor Heinze’s arguments, and made those arguments more palatable, if he had openly focused on the more grievous breaches.?

Clearly, as demonstrated in the case law, including that reviewed in Professor Heinze’s article and as briefly discussed above, the ICTs do recognize and consider the distinction.?Rather than throwing out evidence obtained in breach of any human right holus-bolus, they take a more nuanced approach, balancing the nature of the human rights breach against the gravity of the alleged crime and, in the interests of justice and the integrity of the judicial system, take that sliding scale into consideration when deciding which remedy best addresses the consequences of a particular breach.?Any other approach would not be in the interests of justice and would likely undermine the public’s perception of the integrity of the judicial process, bringing that system into disrepute.

It is very clear, given the nature and extent of the pertinent case law, that ICT judges possess the tools necessary to address evidence-related issues squarely, effectively and fairly, and do so without hesitation.

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[Level 1 Head] Professor Heinze’s intent

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[Level 2 Head] Proper scrutiny of illegal activity

If Professor Heinze’s intent is to highlight the need for courts and tribunals to properly scrutinize illegally gathered evidence properly defined, then he would likely find few who would disagree with him.?But the most troubling aspect of Professor Heinze’s entire paper is its stated focus on evidence collected illegally by private actors. Despite this, most of the examples provided by Professor Heinze relate to evidence collected by public actors - either domestic government investigators or investigators working for or under the auspices of an ICT - and concern acts which may breach certain procedural requirements but which are in no way “illegal”.?The only instance where the actions in question may have been undertaken by private parties rather than investigators – the capture of Nikolic – had significant extenuating circumstances (that Nikolic wasn’t “evidence” but a fugitive from law, the relationship between the UNSC Chapter VII Tribunal and the FRY, the existence and nature of the arrest warrant, legal precedent, etc.) sufficient to justify, from both a legal and an ‘interests of justice’ perspective, the Tribunal exercising jurisdiction notwithstanding.?None of the few instances where courts have begun to rely on evidence gathered by private investigators have raised questions of illegality in the collection of that evidence.

Sadly, perhaps due to the lack of examples of private sector illegality, Professor Heinze resorts to inuendo to build his case.?In relation to the Lubanga disclosure issue addressed above, he states:

It can only be speculated that the Office [of the ICC Prosecutor] was probably rather certain that the ICC could not afford excluding the evidence and eventually acquit Lubanga for reasons of substantive fairness. Argumentum a maiore ad minus, a similar motivation might drive private investigators. (pg, 249)

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Here, not only does Professor Heinze ascribe, without evidence, improper motives (as opposed to “illegality”) to the ICC Prosecutor, he then attributes these same motives, again without any evidence in support, to private investigators.[34]

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[Level 2 Head] Who is more likely to illegally obtain evidence

If Professor Heinze’s intent in identifying these instances of “illegally obtained evidence” is simply to demonstrate that it continues to be a live issue at the international criminal level, then the point is also hardly controversial.?Yet there seems to be no reason to think, and Professor Heinze provides no evidence, that illegality in evidence collection would be more pervasive or grievous in nature when private, as opposed to public, actors conduct investigations.?In fact, given the novelty of private sector investigations, and the strong desire of private investigators to be seen to be legitimate sources of valuable, useful, and otherwise unattainable evidence, the sense is that they would be even more conscious about conducting investigations and gathering evidence with an eye to its admissibility in accordance with the applicable rules governing such admissibility.?In short, it might be argued that private sector investigators have an even stronger incentive to conduct themselves with the utmost propriety than do public sector investigators, who have the privilege of collective and established legitimacy behind which to hide.

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[Level 2 Head] Use of evidence gathered by private investigators

If Professor Heinze’s intent is to argue that all evidence gathered by private investigators is unworthy of trust, the evidence to date demonstrates that where courts have exercised jurisdiction over situations of international criminality, evidence obtained by private sector investigators has been welcomed and utilized without serious challenge.?For example, evidence collected by the Commission for International Justice and Accountability (CIJA), a private, non-profit entity, has been successfully, and without controversy, led in the American civil case Colvin v. Syrian Arab Republic,[35] and has been used by Dutch authorities to secure the conviction of Oussama Ashraf Akhlafa, a former Da’esh fighter, and by German authorities to convict Zoher J., a former leader of an extremist armed group which operated in Aleppo.[36]?CIJA-obtained evidence has also been used by the Higher Regional Court in Koblenz, Germany in the ongoing trial of Anwar R., a high-ranking Syrian regime official.?Finally, the evidence gathered and held in CIJA archives is accessed by domestic law enforcement officials from some 13 states to assist them in criminal investigations.[37]

Investigatory efforts by such organizations as Bellingcat,[38] which conducts web-based investigations and training programs, and the Berkeley Human Rights Law Centre,[39] which, inter alia, provides verified information on human rights violations to NGOs, news organizations and their legal partners, are taking on an increasingly important role in international human rights-based investigations, and they, along with the ICC OTP, are developing innovative investigative techniques and training future investigators and analysts.

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[Level 2 Head] Remedies for illegal private investigator activity

If Professor Heinze’s intent is to suggest that private investigators themselves are unworthy of trust, there is nothing in his article that demonstrates that private investigators, investigating allegations related to atrocity crimes, have or will intentionally and consistently act illegally in the gathering of that evidence. There is equally no evidence of ICTs turning a blind eye to nefarious activities of investigators (public or private), or agreeing to hold private investigators to a lessor standard of conduct than public investigators.?The only discord identified by Professor Heinze is where the ICC has determined that a significant infringement of an individual’s international human rights by public actors acting independently of ICC investigators prior to the commencement of an inter-investigatory situation, over which the Court had no control, will not result in a stay of proceedings.?The Court will not be held accountable for the actions of individuals or governments against the person of the accused of which the Court had no part.?Professor Heinze suggests that, theoretically, this would apply to private investigators as well.?However, as discussed above, ICTs have readily applied other legitimate remedies to any actual physical evidence obtained in breach of an accused’s international human rights, using the time-honoured method of balancing the probative value of the evidence against the prejudicial effect of the breach.?There is no reason to believe that, should a Chamber be faced with a situation where evidence is presented which was obtained by a private investigator through the breach of an accused’s fundamental human rights, the Chamber would not address that issue effectively and fairly using the full panoply of remedies available to it in its Statute and Rules.

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[Level 2 Head] A new regulatory scheme?

Finally, if Professor Heinze’s intent is to argue for the creation of a special regulatory scheme to govern the actions of independent investigators, then three concerns arise.?First, there is a significant likelihood that such a scheme would be so restrictive that it would essentially undermine the very benefits independent investigators bring to the table.?It is precisely because they are independent that they can, for instance, collect information and evidence in conflict zones which are out of the reach of public investigators for risk-tolerance and sovereignty reasons, or travel in areas and meet potential witnesses with greater anonymity.?A robust regulatory scheme governing the actions of private investigator could, in practice, result in their becoming “public” investigators in all but name.?

Secondly, those who recognize the important role private investigators are beginning to play in international investigations are not unaware of the possible dangers to the international criminal process posed by improperly trained investigators – public or private - and the trepidation with which some view the work of private actors.?As a result, the Nuremberg Academy is involved in a project to develop voluntary guidelines for private investigators[40] which would be informed by the ethical and professional standards which govern the criminal-investigative and prosecutorial activities of public criminal investigative and prosecutorial bodies. These guidelines would be designed to be used by private investigators in their work and to train new investigators and intermediaries. They will bring greater transparency to the private investigatory process and hopefully ease concerns regarding possible rogue investigators.

Finally, the interests of public and private investigators, and all others engaged in the investigative process, converge at the point of the admission of the evidence at trial.?Every piece of evidence led before an ICT undergoes intense scrutiny by prosecutors, defence counsel and judges using rules designed to determine the authenticity and reliability of that evidence, and the weight it should be assigned.?One of the considerations, naturally, is the source of the evidence and the chain of custody used to protect that evidence, regardless of who found it and protected it.?There are no instances on record where evidence obtained by independent investigators is given a pass when it comes to this process; in fact, in most instances, as has been shown above, greater scrutiny is applied to such evidence, and, where international human rights have been violated in its collection, including breaches of procedural rules, it has been excluded by ICTs to ensure the fairness of the trial.?In short, there is no danger that evidence gathered by independent investigators is or would be treated in any way different than evidence gathered by public investigators.

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[Level 1 Head] conclusion: Do private investigators constitute a threat to International Criminal Justice and the Rule of Law?

?

While Professor Heinze’s concerns about the use of illegally obtained evidence during international trials are legitimate, there is no reason to differentiate between evidence obtained by public and private investigators. In order to come to a fair understanding of the issue and the level of danger that illegally obtained evidence poses to the international criminal justice system, the following questions must be asked and answered:

Q. Are the instances of evidence being obtained illegally by public or private investigators overwhelming? ?

A. While instances where the validity of evidence is questioned often become public and attract significant attention, occasioning an onslaught of comment, criticism, finger pointing and academic papers, the reality is that these occasions are a rarity when one considers the massive amounts of documentary and witness evidence which are obtained, reviewed, analyzed, and ultimately led before ICTs every year.

Q. Will there be those who through incompetence, inadequate training or maleficence obtain evidence illegally or, more correctly, in breach of procedural rules?

A. Very likely, although history suggests that in most cases the breaches will (i) come to light, (ii) be of an innocent or minor nature, and (iii) will be addressed by the court or tribunal in question fairly and efficiently. ?

Q. Is there any reason to believe that private sector investigators would be more prone to gathering evidence illegally than their public sector counterparts?

A. All evidence to date appears to suggest no.

Q. Does the International Criminal Justice system have the tools to address the issue of illegally obtained evidence, regardless of where the fault lies?

A. Demonstrably so.

Q. Are the people within the system up to the task??

A. Undoubtedly.

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[Level 1 Head] Final Considerations

Today, democracy and the rule of law are under attack by those who are willing to resort to the use of violence to push back on the advances in the protection of human rights that have taken place since the Second World War and more specifically, the advances in the development of procedural and substantive international criminal law and practice since the early 1990’s. These advances have come about largely because courageous people have used creativity and vision to address the conflicts which have resulted in so many horrible crimes. No one would have thought, at the outbreak of the conflict in the Former Yugoslavia in 1991, that the UNSC would ultimately decide to constitute an ad hoc tribunal to address core international crimes committed during the conflict, using its Chapter VII powers.?Yet today it was clearly a brilliant idea which triggered a massive resurgence in, and respect for, the use of law to address atrocity crimes.

This creative impulse must be allowed to flourish; existing laws and practices must be strengthened, and new ways of operating must be allowed to develop.?The use of private investigators is one of the innovations which has become, and will continue to be, of paramount importance in collecting and protecting evidence in conflict zones - evidence which is beyond the capacity of public sector investigators to obtain. As in the public sector, ensuring that private investigators are properly trained and supervised is part and parcel of that work.?Private sector investigators have obtained their legal training in the same law schools and universities as those operating in the public sector, and many have significant public sector training under their belts.??Private investigators bring an extra and essential dimension to investigative work which must be recognized and applauded.??And, as demonstrated above, where breaches of fundamental rights occur during the collection of evidence by anyone, public or private, the investigators, lawyers, judges and the international criminal justice system as a whole have proven to be up to the task of addressing those breaches and ensuring that trials are fair and just.

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*John McManus holds an LL.B. and an LL.M in international criminal law from the University of Ottawa.?He served as counsel with the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, and held a number of positions with the Canadian Department of Justice.?He retired from his post as Senior Counsel and Team Leader with the DOJ War Crimes Section in 2016, and has been retained as a part-time senior legal analyst at a Human Rights NGO since 2018. He has published a handful of papers on ICL-related topics, was a regular guest lecturer at the annual Law of Armed Conflict courses held at Royal Military College Canada, lectured annually for some 20 years at the ICC Summer Course held by the Human Rights Centre NUI Galway, and was Tutor in Law, at the Masters in International Human Rights Law Program, Oxford University in 2006. The views expressed in this paper are those of the author.

[1] Alexander Heinze, Evidence Illegally Obtained by Private Investigators and its use before International Criminal Tribunals, New Criminal Law Review, Vol. 24, Number 2, pps 212–253. ISSN 1933-4192, electronic ISSN1933-4206. References to this paper will be identified by page numbers inserted into the text.

[2] Rome Statute of the International Criminal Court, (last amended 2010), 17 July 1998, (Rome Statute), Art. 54(1)(a).

[3] An expression of the purpose of international criminal law can be found as far back as Justice Jackson’s Opening Address at Nuremberg: “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.” …?A failure of these Nazis to heed, or to understand the force and meaning of this evolution in the legal thought of the world, is not a defense or a mitigation. If anything, it aggravates their offense and makes it the more mandatory that the law they have flouted be vindicated by juridical application to their lawless conduct. … We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law. … The real complaining party at your bar is Civilization.?… [Civilization] does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have “leave to live by no man’s leave, underneath the law”.?See: https://www.roberthjackson.org/speech-and-writing/opening-statement-before-the-international-military-tribunal/#:~:text=On%20November%2021%2C%201945%2C%20in,to%20the%20International%20Military%20Tribunal.

[4] Citing Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-T-146-Red-ENG, Transcript of Hearing, Mar. 13, 2009, 3 ll. 11–18; Lubanga, Case No. ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, (31 May 2010), para. 16.

[5] Citing Lubanga, Case No. ICC-01/04–01/06-1401, Decision on the Consequences of Nondisclosure of Exculpatory Materials Covered by Art. 54(3)(e) Agreements, (15 June 2008), para. 93.

[6] Lubanga, Case No. ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, (31 May 2010), inter alia: paras 65, 111, 112.

[7] Testimony of former Team Leader Lavigne, ICC-01/04-01/06-Rule68Deposition-Red2-ENG WT 17-11-2010 14/75 NB T., (17 November 2010) pg. 16, Lines 12-23.

[8] Lubanga, Case No. ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, (31 May 2010), inter alia: paras 100, 101, 110. See also: Testimony of former Team Leader Lavigne, ICC-01/04-01/06-Rule68Deposition-Red2-ENG WT 17-11-2010 14/75 NB T., (17 November 2010) pgs 15-16.

[9] Lubanga, Case No. ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, (31 May 2010), inter alia: para. 60.

[10] Lubanga, Case No. ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, (31 May 2010), sub-para. 150(iv).

[11] Testimony of former Team Leader Lavigne, ICC-01/04-01/06-Rule68Deposition-Red2-ENG WT 16-11-2010 3/79 NB T, (16 November 2010) pg. 59, lines 9-15.?Note that many of the intermediaries were unpaid, with only their expenses being “stringently” reimbursed.?See inter alia: ibid pg. 58, lines 8-21.

[12] Lubanga, Case No. ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, (31 May 2010), para. 3.

[13] Lubanga, Case No. ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, (31 May 2010), inter alia: paras 66, 88.

[14] Lubanga, Case No. ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, (31 May 2010), inter alia: paras 66, 87.

[15] See, inter alia: Testimony of former Team Leader Lavigne, ICC-01/04-01/06-Rule68Deposition-Red2-ENG WT 16-11-2010 3/79 NB T, (16 November 2010) pgs 68-69, and particularly pg 69, lines 13-19, where Lavigne testifies that security issues were addressed “…even if it undermined or delayed the investigations themselves…”.

[16] Lubanga, Case No. ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, (31 May 2010) para. 150.

[17] Lubanga, Case No. ICC-01/04–01/06-1401, Decision on the Consequences of Nondisclosure of Exculpatory Materials Covered by Art. 54(3)(e) Agreements, (13 June 2008), para. 27.

[18] Lubanga, Case No. ICC-01/04–01/06-1401, Decision on the Consequences of Nondisclosure of Exculpatory Materials Covered by Art. 54(3)(e) Agreements, (13 June 2008), para. 72.

[19] Lubanga, Case No. ICC-01/04–01/06-1401, Decision on the Consequences of Nondisclosure of Exculpatory Materials Covered by Art. 54(3)(e) Agreements, paras. 93, 94 (June 13, 2008). The stay was lifted once the disclosure issues were resolved, see: Lubanga, Case No. ICC-01/04–01/06-1401, Reasons for the Oral Decision on Lifting the Stay of Proceedings, 23 January 2009.

[20] Wayne Jordash, Insiders: The Special Court for Sierra Leone’s Dirty Laundry (April 30, 2020), https://www.justiceinfo.net/en/justiceinfocomment-and-debate/opinion/44201-insiders-the-special-court-for-sierra-leone-s-dirtylaundry.html where he states: “It is even more important that the judiciary when confronted with this type of conduct insists upon transparency and is prepared to lift the veil.” This is exactly what happened in this instance.

[21] Prosecutor v. Nikolic′, Case No. IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, (9 October 2002), para. 6.

[22] Prosecutor v. Nikolic′, Case No. IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, (9 October 2002), paras 100-102.

[23] Prosecutor v. Nikolic′, Case No. IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, (9 October 2002), para. 103.

[24] Prosecutor v. Nikolic′, Case No. IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, (9 October 2002), para 104.

[25] Prosecutor v. Nikolic′, Case No. IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, (9 October 2002), para. 115.

[26] Prosecutor v. Nikolic′, Case No. IT-94-2-PT, on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, (9 October 2002), paras 114, 115. Trial Chamber II distinguished the facts here with the 1974 case: US v. Toscanino, where the accused had been abducted in Uruguay by Uruguayan forces and tortured for 3 weeks with the “connivance of US authorities” before being brought to the US.?The Pre-Trial Chamber noted: “One needs to take into account here that the decision to divest jurisdiction was based on the way the abduction was carried out and not on the fact that an abduction had taken place.” (at para 81).

[27] See: Wayne Jordash, Insiders: The Special Court for Sierra Leone’s Dirty Laundry (30 April 2020), https://www.justiceinfo.net/en/justiceinfocomment-and-debate/opinion/44201-insiders-the-special-court-for-sierra-leone-s-dirtylaundry.html where Jordash notes: “… investigation sections in international courts are not independent organs but subordinate entities that exist for the sole purpose of serving the court process.” Note also that the case which brought the payments to light was the prosecution of an SCSL insider witness, Gibril Massaquoi by Finnish authorities, which commenced with a report by a private NGO, Civitas Maxima, presented to Finnish authorities.?See: Cruvellier, Thierry; The Masssaquoi Affair: Special Report on the Judas of Sierra Leone, Justinfonet, (7 Apr 2020) at https://www.justiceinfo.net/en/44085-the-massaquoi-affair-special-report-on-the-judas-of-sierra-leone-part-1.html.

[28] Prosecutor v. Delalic et al, Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence; IT-96-21-T; 2 Sept 1997

[29] Prosecutor v. Delalic et al, Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence; IT-96-21-T; 2 Sept 1997, Disposition.

[30] Prosecutor v. Katanga and Chui, Decision on the Prosecutor’s Bar Table Motions; ICC-01/04-01/07, 17 December 2010, paras 64, 65.

[31] Prosecutor v. Gbagbo, Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo”, ICC-02/11-01/11, 15 August 2012, paras 102-106, 112.

[32] Including the two Lubanga and the Delalic examples discussed above.

[33] See the testimony of former Team Leader Lavigne discussed above.?Likewise, the Commission for International Justice and Accountability (CIJA) provides ongoing and intensive training for its agents in the field, who are closely supervised by experienced international criminal law lawyers.

[34] Note Professor Heinze’s use of the same tactic in reference to SCSL investigators paying witnesses, and his groundless suggestion that private investigators would do the same, then leaping to the conclusion that private investigators would torture people to obtain evidence (pg 214) see: Paying Informants (above).

[35] See: Cathleen Colvin et al v. Syrian Arab Republic, USDC for the District of Columbia, 16-1423 (ABJ), 30 Jan 2019.

[36] See: Strafverfahren gegen Zoher J. wegen Verdachts der Mitgliedschaft in einer terroristischen Vereinigung im Ausland ("Jabhat al-Nusra" sowie "Islamischer Staat"), Oberlandesgericht, Munchen, 21 March 2019.

[37] Commission for International Justice and Accountability home page at: https://cijaonline.org/ (last visited June 19, 2021).

[38] https://www.bellingcat.com/ (last visited June 19, 2021).

[39] https://humanrights.berkeley.edu/ (last visited June 19, 2021).

[40] See the report on the development by the Academy, with the Max Planck Institute and the CIJA, of the Nuremberg Guidelines for Non-Public Investigative Bodies in the field of International Criminal Law and Humanitarian Law, at: https://www.nurembergacademy.org/projects/detail/9c75eeaee0bd858dfdaeaca1ead42e55/private-investigations-in-international-criminal-justice-24/.