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How Often Must We Re-Invent the Wheel? Reflections on the Most Efficient Structure of Prosecution Offices in International Courts and Why It is Not Generally Used

Published online by Cambridge University Press:  04 September 2017

RUTH BETTINA BIRN
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Abstract

Are historians or other country specialists needed in the investigation and prosecution of crimes under international law? Experiences at international tribunals, from the Nuremberg Trials to the present, offer different answers to this question. This article argues that country specialists are indispensable and demonstrates how, time and again, in international or national settings, practical necessities have led to structural models in which lawyers, investigators and country specialists work together. A ‘best practices’ model for interdisciplinary investigations adopted by a group of national and international prosecution units is presented in detail. When creating new international tribunals, the UN did not incorporate this model. What is needed for future tribunals is a structural framework of the Office of the Prosecutor, which includes country specialists.

Keywords

analystcountry specialistinternational tribunalsNazi prosecutionsstructures of prosecution offices

Information

Type
INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS
Information
Leiden Journal of International Law , Volume 30 , Issue 4 , December 2017 , pp. 987 - 1002
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2017 

1. Introduction

Crimes of oppressive regimes, committed for ideological and political reasons, need to be investigated in a different manner than ordinary crimes. Very often, forensic evidence at crime scenes and bodies to examine do not exist. In these cases, evidence and investigative leads must be gained from an analysis of documents, political and military structures. This is a type of work that historians are trained to do, but lawyers and investigators are not.

In 1945, international prosecutions of war crimes started to deal with the crimes committed by the Axis powers during the Second World War. The victorious Allies established the International Military Tribunals in Nuremberg and Tokyo. In addition, countries which had been occupied by Nazi Germany prosecuted crimes committed on their territory in their military or domestic courts. Most of the investigation and prosecution units closed down in post-war years, with the exception of the Główna Komisja Badania Zbrodni Niemieckich w Polsce in Poland.Footnote 1 Crimes of the Nazi regime were also prosecuted before domestic courts in Germany, from 1945 on. Starting in 1958, investigations in the Federal Republic of Germany were centralized under the Central Agency for the Prosecution of Nazi crimes, in Ludwigsburg. The Central Agency remains open.

At the International Military Tribunal in Nuremberg (IMT), the traditional military prosecutor-led investigation model was used. According to a memoir, an attempt to make the linguistic and factual knowledge of German émigré academics available to US prosecutors, was met with fierce resistance.Footnote 2 The traditional model remained in use until the end of the IMT successor trials.

Following the IMT and successor trials, the issue of what role other professionals should play in the investigation and prosecution of Nazi war criminals before European national courts was defined by their legal systems. The continental systems used a prosecutor-led investigation model, in which historians had no place. For Nazi prosecutions in Germany, Alfred Streim, an experienced prosecutor, and Director of the Central Agency for the Prosecution of Nazi crimes in Ludwigsburg, identified the absence of historians on the investigation team as a major weakness. At the 30th anniversary of the Central Agency, he described the traditional German investigation structure of prosecutors and police, apart from support staff and translators, as not suitable for crimes which happened years ago, and observed that the prosecutor needs to understand the historical framework and find written evidence in archives or trial records, which only a historian can provide.Footnote 3

In the late 1970s, war crimes sections were established in several Western Allied countries following revelations that former Nazis, mainly non-German Nazi collaborators, had found refuge there. In 1979, the US government established The Office of Special Investigations (OSI) as its investigative unit.Footnote 4 In 1987 Canada and Australia followed with the Canadian War Crimes and Crimes Against Humanity Section (CAHWC) and the Special Investigations Unit (SIU), respectively. In 1991, the UK created both a general unit and a special unit in Scotland.Footnote 5

The use of interdisciplinary investigation teams by these units became a reality in the 1980s as a result of the leadership of OSI and the sharing of experiences with the newly formed units in Canada, Australia and the UK, and later with the International Criminal Tribunal for the Former Yugoslavia (ICTY). While the general structural investigation models in each country were not identical, in all of them historians became part of the prosecution teams. The shift to interdisciplinary investigation teams was facilitated by a common interest in successful prosecutions. Personal continuities, which existed between the national units and the ICTY, helped to promote the inclusion of country specialists into the structure of the Office of the Prosecutor.Footnote 6

The experiences of war crimes units in the 1980s confirmed that the further removed prosecutors and investigators are from a conflict – both in terms of space and time – the greater the need for country specialistsFootnote 7 to help them understand the countries under investigation: their languages, history, politics and societal norms. Lawyers, investigators and country specialists – and this is the major argument promoted in this article – working together in a manner which allows for information sharing, interaction, and open dialogue has led to superior investigations and prosecutions and will continue to do so.

Despite the successes of this interdisciplinary approach, the growing literature on the prosecution of crimes under international lawFootnote 8 rarely comments on its importance to creating efficient structures for an international prosecutor's office. One reason may be that the public interest is focused more on the outcome of trials than the structures behind the result. Another reason is the nature of available information. Evaluations of the work of international tribunals are largely based on open source material, like court judgments, witness testimony and court exhibits. Information on the inner workings of an investigation or the decision-making of a prosecutor is not in the public domain. Without access to these confidential documents, it is not possible to do an in-depth analysis of, for example, the choice of evidence in a given case and whether the investigation could have been, or was, improved through the contribution of country specialists. For this article, this methodological challenge was met through the input of professionals, who had experience as or with country specialists; who had, preferably, worked in more than one institution and had insight into periods of transition. The information was solicited via a questionnaireFootnote 9 and responses were given orally during interviews or by e-mail.

2. The interdisciplinary investigation model

OSI's interdisciplinary investigation model developed through a process of trial and error. Initially, OSI had a traditional prosecution office structure consisting of lawyers, investigators and support staff. Historians were hired only for specific research projects. For example, Dr. Peter Black (later OSI Chief Historian) was initially hired to do research in archives in New York. During the early 1980s, the usefulness of having historians on staff for professional document collection and historical analysis manifested itself.Footnote 10 Some investigators and attorneys opposed this change expressing concerns that historians were ill suited for investigations, and that they would want to do lengthy and useless research.Footnote 11 However, after several prosecutions stalled or failed due to lack of evidence and a growing realization by prosecutors and management that such complex cases could only be successfully tried if they rested on substantial and focused research and historical analysis, the decision to implement the new structure was taken.Footnote 12 In the 1980s, after they had received the necessary training, historians increasingly replaced investigators for most tasks.Footnote 13 By 2004, director Eli Rosenbaum had two deputies, one a lawyer, the second, the chief historian, who ensured that professional standards were maintained.Footnote 14

The OSI structure was the result of experience and pragmatism, not a pre-existing model. The later formed national units used the OSI model in developing their own structures.Footnote 15 All units had a lawyer as director and a sizeable component of lawyers and legal support staff. All had historians on staff, and according to the size of the unit, a chief historian. The role of investigators differed from country to country. While OSI had eliminated investigators altogether, SIU and the Scottish and British units had lawyers, investigators and historians under a director, who was a lawyer. The small size of unitsFootnote 16 and good interpersonal relations made these structures work.Footnote 17 In Canada investigators were not integrated into the Department of Justice (DOJ) section, but were in a separate Royal Canadian Mounted Police (RCMP) unit, as is traditional in Canada.Footnote 18 This division had serious negative repercussions, as RCMP investigators conducted investigations independently without legal or historical input or advice. This led to absurd situations, like police officers attempting to do research in historical archives in Europe. This structural problem was resolved in 1990 when the RCMP agreed to the Director of CAHWC having formal control over the investigations of Nazi war crimes.Footnote 19

2.1. A best practices model for interdisciplinary investigations

The best practices model for interdisciplinary investigations developed and used by OSI and the other national prosecutions offices is not fully recorded. The model applies equally to the investigation of Second World War and to contemporary international crimes.Footnote 20 As the next section will demonstrate, these hard-gained experiences can, but should not, be forgotten or ignored as international crimes are still being committed in various countries throughout the world. The model outlined below can provide the UN or other multinational bodies like the EU with the basic framework for interdisciplinary investigative units within a prosecutor's office.

2.1.1. Hiring

Country specialists were hired on the basis of factual knowledge and specific linguistic capacities. For Second World War cases, which concerned mainly Eastern Europe and a limited number of languages, it was possible to find academics with the required skills. For modern-era crimes – concerning conflicts which span the globe – this is more complicated, in particular for small units. Only the major conflicts (Rwanda, former Yugoslavia) and major languages could be covered with in-house country specialists. For cases concerning other parts of the world, the in-house country specialist has to work with a contractor,Footnote 21 also with academic training, preferably somebody residing in the country, where the bulk of the research has to be done.

Apart from their knowledge of languages, the country specialists had to have an academic degree (preferably a PhD), which guarantees that they can do research independently. This means, that they themselves identified, accessed and researched the sources required for their project, not only performed analysis on data put in front of them.Footnote 22 Strong analytical and writing skills were a prerequisite. These academics had to be trained to work as part of an investigation and litigation team.Footnote 23

2.1.2. First phase of an investigation

Every country specialist was assigned a caseload, matching her/his linguistic capabilities and scholarly specialization, and was placed in a team together with lawyers and investigators. The country specialist then had to locate, gather and analyze every piece of information relevant to her/his cases, in particular archival records, trial records of parallel trials or collections of victim statements.Footnote 24 The availability and accessibility of written records can differ between Nazi and modern cases, as well as organizations collecting and archiving information, such as NGOs or victim associations. The country specialist needs to know of existing documents, to think creatively about additional potential sources and to be persistent in obtaining the required access to them.Footnote 25

From the beginning of an investigation, it was critical that all information was put into a database in an organized manner, together with key words to facilitate searching. This requires qualified and linguistically competent staff. Serious problems with document management have arisen when investigation databases were not populated with the necessary foresight and care.

After the country specialist had analyzed and cross-referenced all information gathered, a background report, a suspect-specific report and a list of potential witnesses was provided for the lawyers and investigators on the team. It is particularly important that all previous statements (if any) of a potential witness have been obtained and evaluated. Only after this preliminary work had been done was a witness interviewed. This is to ensure that interviewers are as well informed as possible and that, hopefully, not more than one statement has to be obtained.

2.1.3. Next phase of investigation and trial

Up to this point most of the work involved evaluating written sources, which academics are trained to do. Next, investigators and/or lawyers started interviewing witnesses, with the help of the material provided. Country specialists assisted with witness interviews if the witness was a high profile figure or under exceptional circumstances. While the country specialists had done most of the work up to this point, now their role diminished and the work of the other team members increased. Throughout the course of the case, the country specialists were – apart from doing any research required – part of on-going discussions in the team and always available for consultation. (This has proven to be important in modern cases, where the media may provide a biased view on the conflict, which could influence the course of the investigation, if not rectified by the country specialist.Footnote 26 )

In addition, country specialists helped with document management and selection, and wrote the historical and background parts of reports, notices and indictments. They assisted with the identification and preparation of historical experts and were present in court, when testifying.

2.1.4. Framework

For this ‘best practices’ model to function effectively, the leadership of the organization needs to commit to it and support the head of the country specialist unit.Footnote 27 The head allocates work to country specialists, ensures that professional standards are maintained, research is confined to what is required for the cases, supports the country specialists’ role on the teams and monitors the progress of all cases.

3. Transition to ICTY and ICTR

Regrettably, the best practices example did not survive the shift to the international tribunals. This is surprising, because the personal continuity at the senior level of the ICTY was quite strong. In particular, Graham Blewitt, deputy prosecutor of the ICTY, who set up the tribunal in the beginning, had been director of SIU.Footnote 28 Other former SIU members came to hold important positions at ICTY, as well as the former head of the Scottish war crimes unit, Gavin Ruxton. The senior analyst, Dr. Patrick Treanor, a specialist on the Balkans, came from OSI. So, what happened?

Deputy Prosecutor Blewitt was well aware of the benefits of a multidisciplinary approach, and intended to draw on the experience gained at SIU when setting up the ICTY and to add historians/country specialists to the usual mix of lawyers and investigators. As the political and historical background of the conflict was important, he turned to historians like Treanor.Footnote 29 In his recollection, three different factors stood in the way: First, a lack of support from the UN, in particular the lack of support by the administration for obtaining the right level of positions and hiring. The senior analyst, for example, should have had a rank which allowed him to represent his group, but the UN created only a junior position.Footnote 30 Reasons for this are that nobody had any prior experience with international tribunals and the UN rules and regulations were not equipped for them.Footnote 31 Second, the conflict was still ongoing when the ICTY was established. That created a certain dynamic. While at SIU one had to recreate history, what happened in ex-Yugoslavia was in the daily news.Footnote 32 Police investigators were among the first to arrive at the tribunal, which shaped the structure of the tribunal in a certain way.Footnote 33 Third, international organizations have their own problems. The mix of an unprecedented structure and rapid growth and employees with different national, ethnic and cultural backgrounds, does not make for efficiency.Footnote 34

Treanor endorses Blewitt's assessment in respect of problems with hiring country specialists, as their profile did not fit into UN job descriptions.Footnote 35 He himself as ‘Research Officer’ (the only one in the UN) was only a P 4,Footnote 36 while such a senior position would normally require a P 5 classification.Footnote 37 It took till 1997/98 to improve the structure, even as management was sympathetic and shared Treanor's assessment that more and better analysis needed to be done. A Leadership Research Team (LRT, under Treanor himself) and a Military Analysis Team (MAT) were created, in part out of an earlier ‘Strategy Team’.Footnote 38 The restructuring allowed Treanor to implement the OSI model and to hire academics with graduate degrees, a solid knowledge of the history of Yugoslavia, the present conflict and the languages.Footnote 39 The group grew quickly from initially 12 members to more than 30 in 2004.Footnote 40 According to ICTY historian Dr. William Tomljanovich, by 1999 the US market for Balkan specialists was emptied.Footnote 41

In his choice of academics as analysts, Treanor was guided by his OSI experience. In general, the term ‘analyst’ (often subdivided into political, criminal and military analystsFootnote 42 ) can be undefined and at ICTY was often used interchangeably. Former MAT team leader Philip Coo points out that there needs to be an appreciation that within the term ‘analyst’, there can be substantial differences in roles and functions performed although all do analysis in some form. A distinction has to be made between analysts in LRT and MAT, who did specialized, in-depth research from which substantial written reports were generated, and those who were integrated directly into investigative teams and were used for more traditional crime analysis common to police forces operating in a domestic jurisdiction.Footnote 43

There were ongoing frictions between police investigators and historians/analysts, and also between investigators and lawyers. In part, this was connected to the more independent role police enjoy in common law systems, while in a civil law system police are instructed by prosecutors.Footnote 44 Frictions also were attributed to police trying to protect their turf, not share information, dominate analysts and use them for menial tasks.Footnote 45 This friction could have been reduced, if a Chief Analyst or Historian with a professional level equal to his police counterparts was at the management table to represent the interests of the analysts and country specialists.Footnote 46 Another long-lasting problem was the haphazard way investigators collected evidence and put it in the database. The ICTY document collection grew to almost eight million pages, but the careless and unprofessional way documents were registered in the beginning made it difficult to locate evidence in a timely manner and caused disclosure issues.Footnote 47 Overtime, the evidence-collecting role of investigators was reduced. After the opening of archives in the former Yugoslavia in the early 2000s, historians who spoke Serbo-Croatian and knew the conflict and the historical background were required to research the archival holdings and identify documents which were crucial for litigation.Footnote 48

In 2000/2001 Prosecutor Carla Del Ponte implemented a major change by putting Senior Trial Attorneys in charge of case development. According to her memoirs, this was triggered by complaints by senior lawyers that the evidence collected by investigators was not sufficient for litigation.Footnote 49 These developments were strikingly similar to those experienced by OSI in the 1980s. The requirements of the prosecution, the need to understand political and military command structures and to put documents and witness statements into the larger political and historical background, up-graded historians and created a new distribution of work among lawyers, investigators and country specialists. Necessities shaped structures.

Unfortunately, the personal continuity which existed between the national Second World War war crimes units and ICTY did not extend to the International Criminal Tribunal for Rwanda (ICTR). Blewitt was deputy prosecutor only for the ICTY (while both tribunals had the same prosecutor till 2003). Conditions at the ICTR were bad; in particular, in the beginning it was difficult to recruit qualified people.Footnote 50

Practical necessities again led to the same type of structural changes as described above for the ICTY. In 2000, Laurent Walpen was appointed as new Chief of Investigations in Kigali.Footnote 51 There had been a long gap between him and his predecessor, causing a lot of problems and requiring major restructuring. How major this was is reflected in a strategy paper in which the very basic components of an investigation are described.Footnote 52 As one part of his effort, Walpen restructured investigation teams and strengthened the analytical capacity. Analysts should be part of every investigation team. In addition, a central analysis unit was created.Footnote 53

At the ICTR, Walpen only knew of a criminal analyst, with a recognized career path through which one was trained as an analyst.Footnote 54 These comparative new-comers to police organizationsFootnote 55 were hard to find.Footnote 56 At the ICTR, nobody had been aware of analysts before 1996.Footnote 57 The type of country specialist successfully introduced by Treanor at ICTY was unknown.Footnote 58 Thus, the term ‘analyst’ on an ICTR job advertisement did not necessarily lead to the person most suitable for the job.Footnote 59

A recent publication focusing on the question of whether international courts correctly depicted historical events reinforces the above. Richard Wilson did an in-depth assessment of the ICTY and found, in particular, the two leadership teams to be an improvement, because they ‘enhanced the ability of the prosecutors to integrate historical and contextual evidence into their cases’.Footnote 60 In his view, the ICTY wrote an authoritative account of the conflict in Bosnia, and the systematic persecution of Bosnian Muslims.Footnote 61 On other tribunals he is less complimentary: ‘Lacking a critical mass of social and historical researchers in the OTP, the ICTR's analysis had a thinner and brittle quality than that at the ICTY.’Footnote 62 Wilson concludes: ‘For some inexplicable reason, the positive experience of the Leadership Research Team (LRT) and the Military Analysis Team in the Office of the Prosecutor at the ICTY has not been reproduced in subsequent international criminal trials.’Footnote 63

4. The ECCC and SCSL – Two very different experiences

While this article discusses the experiences of various prosecution bodies in investigating and prosecuting international crimes, it cannot deal with all international tribunals.Footnote 64 Suffice it to say, finding the right balance between lawyers, investigators and country specialists continues to be work in progress. The International Criminal Court (ICC), for example, is trying new approaches.Footnote 65 Regrettably, information about the successes and failures of the ICC structures was not available to the author in necessary detail at the time of research for this article. Hopefully, individuals with a direct insight into the contributions of country specialists to the ICC will publish on this subject in the future.

Two other tribunals – the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Court for Sierra Leone (SCSL) – will be briefly commented upon, because they represent diametrically opposed approaches to the use of country specialists. This allows a comparison of their usefulness for the success of a prosecution.

In the case of Cambodia, historical research on the Khmer Rouge, including collecting documents and interviewing witnesses had been undertaken by scholars and documentation centers long before the ECCC was finally set up, after many political problems.Footnote 66 How did the fact that country specialists were already available when the tribunal was created impact on its structure?

As in previous examples, at its inception the tribunal was given only an inadequate skeleton staff, made up of a few lawyers, without any researchers, analysts or investigators.Footnote 67 This first staffing table was prepared by the UN Office of the Legal Affairs (OLA).Footnote 68 Reasons for omitting to include key components of a prosecutor's office were inexperience on the side of the UN,Footnote 69 donor fatigueFootnote 70 and the (unfounded) hope that the work done by the Documentation Center of Cambodia would make further investigations unnecessary.Footnote 71

Robert Petit, the first International Co-Prosecutor (OCP), who had had extensive experience with other international courts and had worked at CAHWC, made his acceptance of the job dependent on adequate staffing, in particular with researchers, analysts and investigators.Footnote 72 Both he and the International Co-Investigating Judge (OCIJ) hired Khmer Rouge specialists, among them Dr. Stephen HederFootnote 73 (at OCIJ) and Dr. Craig EtchesonFootnote 74 (at OCP). These two were able to recommend other suitable candidates.Footnote 75

The experiences of these two Khmer Rouge specialists are instructive. The workload was overwhelming, which resulted in everybody having to participate according to their capability, not their function, and work in very close co-operation.Footnote 76 The country specialists combined field interviews, document research and analysis, provided feedback in witness interviews, and reviewed and commented on the work product of the lawyers.Footnote 77 When more and more interdisciplinary staff was added (anthropologists, people from international organizations) frictions started with police investigators, who also brought in the type of analysts they were used to working with.Footnote 78

Nevertheless, the assessment of both country specialists is positive. Heder was satisfied with the way his prior published and unpublished writings and his work for the court contributed to build and litigate cases.Footnote 79 According to Etcheson, ‘From my perspective, the interdisciplinary nature of the OCP team contributed significantly to the efficiency of our work and to the quality of our work product’.Footnote 80 This positive view is supported by an otherwise quite critical outside assessment. The authors are of the opinion that ECCC greatly benefitted from the contribution of country specialists, because of their knowledge of Khmer Rouge history and their efforts at collecting information beforehand.Footnote 81 The limited number of prosecutions is not the result of structural deficiencies, but of political circumstances.Footnote 82

The SCSL can be considered a counter-example. The prosecution did not hire any country specialists, but relied on the traditional mix of investigators and lawyers.Footnote 83 Insight into the reasons for this is found in a report on the ‘Investigative practices of the Office of the Prosecutor’.Footnote 84 According to the first Chief of Investigation, Alan White, it was decided, after visiting ICTY and ICTR, that the model of investigators working according to the instructions of lawyers was not efficient and the Chief of Investigations would need independence in order to fulfil his responsibilities.Footnote 85 Behind this decision stood the philosophy that SCSL was to be a new model for international tribunals, with lower costs and a more effective completion strategy.Footnote 86

David Crane, the first prosecutor, hired only one human rights researcher, Corinne Dufka, for advice on the history of the conflict.Footnote 87 Dufka provided briefing materials, including an atrocity-mapping project with the geographic and temporal distribution of various incidents, but found to her dismay that the investigators showed very little interest in these materials. ‘I gave them orientation packets which they didn't read and then they would go out and do investigations, and they were ill equipped to be doing proper criminal investigations, because they hadn't done their homework’.Footnote 88 This impeded the investigation, for instance the ability to develop leads (‘If you don't know what you are trying to investigate, you can't find good leads’).Footnote 89 The lack of knowledge on how to effectively obtain information from Sierra Leoneans led to many flawed statements as well.Footnote 90

This criticism was echoed by outside observers, mainly social anthropologists – academics, who were specialized on Sierra Leone and had spent years doing research there, with a focus on interviewing people.Footnote 91 A focal point for critics was the first SLSC trial against the Civil Defense Forces (CDF). On the CDF issue, the prosecution called a British military expertFootnote 92 and the defence called social anthropologist Danny Hoffman, who had written his PhD on the Kamajors, a social movement on which the CDF was based. Hoffman massively disagreed with the way the prosecution characterized the CDF.Footnote 93 The characterization of the CDF was central to the legal question of ‘command responsibility’. Hoffman argued against a command structure, speaking instead of a ‘militarized social movement’.Footnote 94 Whether Sierra Leonean or Western norms were applied also effected the legal classification of child soldiers and forced marriages.Footnote 95 Criticism ranges from the allegation that the SCSL did not take ‘anthropological evidence into consideration’,Footnote 96 to the charge of ‘legal imperialism’.Footnote 97 Nancy Amoury Combs’ research on ICTR, East Timor and SCSL trial records and judgments led her to the conclusion that testimonial deficiencies – caused by a lack of understanding the conflict or cultural facts – are so strong that international justice amounts to show trials.Footnote 98

This article does not offer an opinion on whether this criticism is justified, but in the context of our argument it proposes that a situation like that should never have occurred. The prosecution should have identified and consulted the leading scholars in the field prior to an indictment and they should have had social anthropologists among the country specialists on staff.

5. Conclusion and recommendation

The evidence to support the inclusion of academically trained country specialists – historians, political scientists, social anthropologists or others – into the structure the prosecutor's office for the investigation and prosecution of crimes under international law is clear and compelling. A recent publication on best practices for international tribunals, based on the experiences of people who had worked at the offices of international prosecutors, provides support to the structural model advocated in this article.Footnote 99 Their recommendations are based on the difficulties they encountered. One segment of the book reads like a compendium of bad police practices, recommending that investigators write ‘meaningful’ reports, analyze witness statements (and not just put the date when they were recorded on them), and prepare thoroughly before interviews.Footnote 100 Another set of recommendations advocates a balance of investigative, legal and analytical capacity, each group being placed under professional management and working in close collaboration.Footnote 101 The need to avoid chaos in the evidence unit is also stressed.Footnote 102 These problems are very similar to those described above, and can be remedied using the recommended best practices model.

Time and again, new tribunals are set up, normally under somewhat chaotic conditions, when speedy action is required. When the UN conducts the political negotiations for new tribunals, they do not provide more than a basic structural outline and leave the implementation to the persons appointed to lead the organization. This inevitably leads to a new round of trial and error. To avoid the useless repetition of mistakes of the past in the future, a structure of the prosecutor's office including country specialists using the best practices model should be discussed, agreed upon and made an international norm. The best functioning wheel has been designed, tried and tested: We should stop reinventing it.

References

1 This organization still exists, even as the name has been changed several times. The Polish commission is different from other national units, as a research and archival center are linked to the investigative body. It has not been established why this unconventional structure was chosen; e-mail to author, Wlodzimierz Borodziej, 23 May 2007. See, Borodziej, W., ‘“Hitleristische Verbrechen”. Die Ahndung deutscher Kriegs- und Besatzungsverbrechen in Polen’, in Frei, N. (ed.), Transnationale Vergangenheitspolitik. Der Umgang mit deutschen Kriegsverbrechern in Europa nach dem Zweiten Weltkrieg (2006)Google Scholar. The book by Frei offers an overview of national postwar Nazi prosecutions.

2 J. Herz, Vom Überleben. Wie ein Weltbild entstand. Autobiographie (1984), 140.

3 This episode is, in part, based on the personal recollections of the author. The Central Agency is somewhat of an anomaly among Nazi prosecution units. There had been numerous investigations and prosecutions of Nazi crimes in West Germany, but a 1958 trial lead to the realization that Nazi crimes committed outside of Germany in the occupied East had not been sufficiently investigated; see A. Rückerl, NS-Verbrechen vor Gericht. Versuch einer Vergangenheitsbewältigung (1982).

Streim's attempts to draw public attention to this structural flaw were followed by requests to his superiors to change the structures and create, at least, one job for a historian. This was denied for fiscal reasons. Traditionally, there were no historians on the budget plan of German prosecution offices and, it was argued, there would be no use for them once Nazi investigations were over. Alfred Streim, Head of Central Agency to Baden-Württemberg Justice Ministry, 16 July 1991; Baden-Württemberg Justice Ministry to Baden-Württemberg Finance Ministry, 9 April 1992; Baden-Württemberg Finance Ministry to Baden-Württemberg Justice Ministry, 20 May 1992; Baden-Württemberg Justice Ministry to Central Agency, 12 July 1992; Central Agency annual reports dated 8 July 1992, 2 July 1993, 11 July 1994, all: Justice Ministry, file 220 ZSL-178. The author wishes to thank the Baden-Württemberg Justice Ministry for making these documents available.

4 There were personal continuities between the Nuremberg Military Trials and OSI. The first director of OSI, Walter Rockler, had been a prosecutor in Nuremberg and was influenced by this experience. Two other members of the Nuremberg prosecution staff worked at OSI. Telephone interview, Peter Black, 25 January 2008. Dr. Black joined the INS Special Litigation Unit in 1978 and moved with the Agency over to the Criminal Division when it was renamed OSI in 1979. Chief Historian at OSI 1989–1997, in 1997 Senior Historian at the United States Holocaust Memorial Museum.

5 The author's own work took place in this period, as a researcher and consultant for OSI, CAHWC and SIU from 1986 till 1991, and Chief Historian of CAHWC from 1991 till 2005.

6 When the ICTY was set up in 1993, SIU and the Scottish Unit had just been closed down and several of their former members – as well as others from OSI and CAHWC – joined the new tribunal.

7 Here, and in the following, ‘country specialist’ is used as a general term to include historians, political scientists or ethnologists, in short anybody who has acquired factual and linguistic expertise about a country through academic research and analysis, not personal background.

8 The term does not cover all legal provisions which were used in the prosecution of criminal regimes. For example, German prosecutions of Nazi crimes are conducted according to the German penal code.

9 A questionnaire was used asking about: creation and structure of the organization concerned, structural changes, functioning of the organization, evaluation of the efficiency of the organization. As is evident from the dates of interviews, this project was started in 2007/2008 but, due to other projects, only finished in 2015.

10 Telephone interview, Peter Black, 25 January 2008.

11 Ibid.

12 Until 1977, Nazi cases were handled by the INS (deportation) and regional US Attorney's Offices (denaturalization) with a mixed success rate. In 1977, the INS established a central office in Washington, the Special Litigation Unit (SLU). Then in 1979, the unit was transferred into the Department of Justice (DOJ) Criminal Division, and renamed OSI; Telephone interview, Peter Black, 25 January 2008; Telephone interview, Elisabeth White, 5 May 2008. Dr. White joined OSI in 1981, from 1997 on she was Chief Historian, from 2004 on Deputy Director. In 2012 she joined the United States Holocaust Memorial Museum.

13 Black lists the following tasks for historians: conducting investigations overseas in foreign archives, identifying and questioning of foreign witnesses, assisting attorneys in preparing for witness interviews and in preparing expert witnesses for testimony, ensuring that all relevant evidence was submitted; e-mail, Peter Black, 21 October 2015.

14 Telephone interview, Peter Black, 25 January 2008.

15 This was the result of consultations with the existing units. On CAHWC: E-mail to author, Christopher Amerasinghe, 22 December 2007. Mr. Amerasinghe was Senior General Counsel in CAHWC from 1987 to 1996. In 1987, he was the only Canadian lawyer with experience with Nazi crimes, because of a 1982 extradition case. He was instrumental in setting CAHWC up. On SIU: E-Mails to author, Konrad Kwiet, 25 November 2007, 14 January 2008. Dr. Kwiet was the Senior Historian of SIU throughout its existence. The Scottish unit consulted CAHWW and SIU, but did not directly adopt the OSI model. On the British and Scottish units: Personal interview, Gavin Ruxton, Den Haag, 31 January 2008. Mr. Ruxton was head of the Scottish Unit 1991–1993, at ICTY from 1993 to 2010 in various leading positions, finally as Chief of Prosecutions.

16 Personal interview, Gavin Ruxton, Den Haag, 31 January 2008.

17 E-mail to author, Konrad Kwiet, 14 January 2008.

18 E-mail to author, Christopher Amerasinghe, 22 December 2007.

19 Telephone interview, Christopher Amerasinghe, 31 January 2008. According to former Senior General Counsel Christopher Amerasinghe the intransigence of the RCMP led to infighting between Justice personnel and police, which was detrimental to the efficiency of the Canadian War Crimes Program and it took years to rectify the situation. In Amerasinghe's view, the section was run most efficiently from 1990 to 1995, due to strong leadership on the side of DOJ. But afterwards, and with respect to modern-time crimes, the best division of labour could not be maintained.

20 CAHWC used country specialists for both, Second World War and modern international crimes. Canada was, from the beginning, given a mandate not confined to Nazi crimes, but including modern conflicts as well. White confirms the transfer of OSI to a modern period law enforcement body; Telephone interview, Elizabeth White, 5 May 2008. In 2010, OSI was merged with the Human Rights and Special Prosecutions Sections within the Criminal Division of the Department of Justice.

21 These contractors are different from experts testifying in court, who should be independent academics of high standing.

22 Hiring PhDs has another benefit, as the written work of job applicants allows an insight into how they think about the conflicts under investigation and, consequently, the work of the section. Probing such issues cannot be done during a job interview, but the issue is important.

23 As a rule, this takes one year for the basic training; after another year, people should be ready to independently make a contribution. This investment in on-the-job training is a trade-off against the five to ten years of academic and linguistic training which country specialists bring to a section.

24 Access to archives abroad had to be negotiated beforehand by the director through diplomatic means.

25 For example, the bulk of documents for Nazi cases was in Soviet archives, which had not been open to independent scholars. With the break-up of the Soviet Union, access was possible, but one had to piece together the structure of these archives, in particular KGB archives, and to find a way to evaluate them most effectively. This was a lengthy process – and not much different for modern cases. High-profile archival holdings are likely to have previously been off-limits. However, scholars working on earlier time periods or on not very sensitive subjects might have gained access and could be consulted about how archives in a particular country are structured. Equally important is to understand how documents were created in a given regime. Often the most important records – for example, of police units – had been destroyed to conceal crimes. However, knowledge about practices of distribution of documents can assist to locate information. For example, membership in a police unit can be confirmed through administrative or financial records, which were consider too harmless to destroy. The key document in one Nazi era case was a sugar distribution list. One also has to consider all sorts of sources, including non-written ones.

26 To protect the integrity of the investigations, ICTY initially did not allow the hiring of nationals of the conflict states, out of fear of infiltration, Telephone interview, Graham Blewitt, 3 March 2008. The problem of potential bias can also manifest itself with interpreters, who are chosen solely for their language proficiency, but can have a considerable influence on the people they work with, in particular during field trips, because they do not only interpret language, but convey an understanding of the country, its culture and even the conflict itself.

27 This has been called the ‘tripartite model’, consisting of team leaders for the legal, investigation, analysis section, all equal under a chief prosecutor/director, Fujiwara, H. and Parmentier, S., ‘Investigations’, in Reydams, L., Wouters, J. and Ryngaert, C. (eds.), International Prosecutors (2012), 572 CrossRefGoogle Scholar at 592.

28 See, Blewitt, G., ‘The Importance of a Retributive Approach to Justice’, in Blumenthal, D. and McCormack, T. (eds.), The Legacy of Nuremberg: Civilizing Influence or Institutionalized Vengeance? (2008), 39 Google Scholar.

29 Telephone interview, Graham Blewitt, 3 March 2008.

30 Blewitt was not even aware that he had a P4 position, Telephone interview, Graham Blewitt, 3 March 2008. Treanor was up-graded to a P 4 position later, see structure in Townsend, G., ‘Structure and Management’, in Reydams, L., Wouters, J. and Ryngaert, C. (Eds.), International Prosecutors (2012), 171 CrossRefGoogle Scholar, at 233.

31 Telephone interview, Graham Blewitt, 3 March 2008. Larry Johnson, formerly with the Office of Legal Affairs, confirms that at this time nobody at the UN had any experience with international courts; E-mail to author, Larry Johnson, 21 July 2014.

32 Telephone interview, Graham Blewitt, 3 March 2008. That the history of the conflict had not been researched at this time is supported by Treanor, Telephone interview, Patrick Treanor, 21 January 2008. Dr. Treanor joined OSI in 1980; from 1994 till 2009 he was Research Officer at ICTY.

33 Telephone interview, Graham Blewitt, 3 March 2008. In the first period, Gavin Ruxton saw some justification in police investigators taking the lead, because initially the work consisted of finding witnesses or conducting exhumations; Personal interview, Gavin Ruxton, Den Haag, 31 January 2008.

34 Telephone interview, Graham Blewitt, 3 March 2008. In addition, the tribunal was not only a new organization, but also a big one. Treanor stresses the impact of size on structure. He considered the OSI structure more efficient, but this was facilitated by the fact that it was a smaller office; Telephone interview, Patrick Treanor, 21 January 2008.

Blewitt's recollections are supported in many points in articles by former ICTY personnel, published ten years later; see Harmon, M. and Gaynor, F., ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings’, (2004) 2 JICJ 403 Google Scholar;

Schrag, M., ‘Lessons Learned from ICTY Experience’, (2004) 2 JICJ 427 Google Scholar;

Pantz, S., ‘From Bosnia to Kosovo and to Bosnia Again’, (2004) 2 JICJ 459 Google Scholar.

35 Initially, Treanor had been hired as an investigator; Telephone interview, Patrick Treanor, 21 January 2008.

36 Townsend, supra note 30, at 233.

37 Telephone interview, Patrick Treanor, 21 January 2008. Internally, the title Senior Research Officer was used. Treanor points out that at ICTY he never acquired a position comparable to that of a deputy director at OSI.

38 Telephone interview, Patrick Treanor, 21 January 2008; Personal interview, Philip Coo, Den Haag, 26 June 2014. Mr. Coo was at MAT from 1999-2008, from 2004 as Team Leader. Personal Interview, William Tomljanovich, Den Haag, 9 July 2015. Dr. William Tomljanovich joined the LRT at ICTY in 1999. There is a debate whether historians should be in separate units or integrated into investigation teams. According to Blewitt, one historian per team would have been ideal, but because of lack of resources the second-best solution was to create two teams, which could assist all legal teams. Ruxton considers the centralized units should have been integrated into teams. Coo sees advantages in an independent unit, which for example, facilitates the ability to freely share ideas, exercise quality control and mentor less experienced colleagues. It also allows for an experienced analyst acting in the capacity of team leader of an analysis team to ensure investigations and trial teams are provided with coordinated analytical support, with professional advice on how best to employ analysts; E-mail to author, Philip Coo, 27 June 2014.

39 Telephone interview, Patrick Treanor, 21 January 2008. Scholar Richard Wilson describes this in the following way: ‘Treanor sought out professionals with regional expertise who could speak the local languages and could read documents directly without the need for translation. He sought out professionals with appropriate training, and a sizeable percentage of LRT staff had graduate degrees, mostly in history and the social sciences’; R.A. Wilson, Writing History in International Criminal Trials (2011), 81.

40 Wilson, ibid., at 81.

41 Personal interview, William Tomljanovich, Den Haag, 5 July 2014.

42 R. Petit, D. Akerson and M. Warren (eds.), Prosecuting Mass Atrocities. Lessons from the International Tribunals. A compendium of lessons learned and suggested practices from the offices of the prosecutors. ICTY, ICTR, SCSL, ECCC, STL. Launched at the 17th Annual Conference of the International Association of Prosecutors, 1 November 2012, at 13. In possession of author.

43 E-mail to author, Philip Coo, 19 October 2014; Personal interview, Philip Coo, Den Haag, 26 June 2014. For MAT a military background was required, unless, in rare instances, the work was of a more general nature and carried out under the guidance of an analyst with military experience. The MAT team leaders were always former military officers. Some people at LRT bore the title ‘Research Officer’, others ‘Intelligence Analysts’ but they might perform the same work. Levels of education and pay grade were not necessarily correlated. Titles had to be adapted to the limited choice of titles in existence at the UN; E-mail to author, William Tomljanovich, 8 October 2014.

A former Team Leader of MAT, Peter Nicholson, makes a distinction between country specialists, who might be biased, and analysts who ‘apply an approach to any analytical task’ and, thereby, achieve objective results; P. Nicholson, ‘The Function of Analysis and the Role of the Analyst within the Prosecutor's Office of an International Criminal Court’, Contribution to an expert consultation process on general issues relevant to the ICC Office of the Prosecutor, 13 February 2003, available at asp.icc-cpi.int/iccdocs/asp_docs/library/organs/otp/Nicholson.pdf (accessed 17 February 2008), at 10. This distinction is artificial and disregards the fact that a good part of historical academic training is the critical review of sources in order to arrive at objective conclusions.

44 Del Ponte, C., Madame Prosecutor: Confrontations with Humanity's Worst Criminals and the Culture of Impunity (2008), 126–9Google Scholar. This is echoed by Sylvie Pantz, who, while an ICTY investigations commander from 1996–1999, was by background a French juge d'instruction. This again highlights the common – civil law divide, Pantz, supra note 34.

45 Telephone Interview, Patrick Treanor, 21 January 2008; Personal interview, William Tomljanovich, Den Haag, 9 July 2014. Investigators for police forces would typically be more familiar with the work of criminal analysts and less knowledgeable about the potential value of the other categories of analysts they might be exposed to in international courts. However, competent investigators were needed to conduct interviews properly, historians were not trained to do this; Personal interview, Philip Coo, Den Haag, 26 June 2014; e-mail to author, Philip Coo, 19 October 2014.

46 Personal interview, William Tomljanovich, Den Haag, 9 July 2014; e-mail to author, William Tomljanovich, 8 October 2014. A strong Chief Historian/Analyst is also essential for proper quality control of the historical work. Treanor never reached the P 5 level, while several investigators held this rank.

47 Personal interview, William Tomljanovich, Den Haag, 9 July 2014; Del Ponte, supra note 44, at 125.

48 Personal interview, Gavin Ruxton, Den Haag, 31 January 2008; Telephone interview, Patrick Treanor, 21 January 2008; Personal interview, William Tomljanovich, Den Haag, 9 July 2014. These documents became available for the first time, therefore ICTY historians had to act as experts and present them to the courts.

49 In her memoirs, Del Ponte writes very negatively about investigators, their level of competence and willingness to learn – in particular from country specialists. Del Ponte, supra note 44, at 122–32. She puts blame on Blewitt for trying to replicate SIU, but ignores the fact that at SIU investigators had to co-operate with historians – something Del Ponte herself advocates.

50 Telephone interview, Graham Blewitt, 3 March 2008; Personal interview, Mohammed A. Lejmi, Den Haag, 20 October 2009. Mr. Lejmi was an analyst at ICTR from 1998 till 2006, from 1999 on as deputy head of the analysis section. From 2006 to 2009 he was deputy director of investigations and external liaison officer at the United Nations International Independent Investigation Commission (UNIIIC). From 2009 to present, he is at the Special Tribunal for Lebanon (STL). See L. Walpen, ‘Quelques considerations sur la direction des enquêtes d'un Tribunal Pénal International’, 13 Mars 2003, contribution to an expert consultation process on general issues relevant to the ICC Office of the prosecutor, available at asp.icc-cpi.int/iccdocs/asp_docs/library/organs/otp/Walpen.pdf, received from Mr. Walpen.

51 E-mail to author, Laurent Walpen, 1 April 2010; Del Ponte, supra note 44, at 133–4.

52 L. Walpen, Directeur des enquêtes, Tribunal Penal International pour le Rwanda, Strategie des investigations, 1.8.2000, received from Mr. Walpen.

53 L. Walpen, ‘La conduit des enquêtes, un défi majeur pour la justice pénale international’, Juillet 2004, in Justice internationale et scolaire: points de repére, received from Mr. Walpen; Walpen, supra note 52. E-mail to author, Laurent Walpen, 1 April 2010. One major difference to the ‘best practices’ model is that investigators collected the material and analysts worked on it after.

54 E-mail to author, Laurent Walpen, 23 June 2010. Many acquired a good knowledge of Rwanda over time, but did not bring this to the job from the beginning.

55 E-mail to author, Laurent Walpen, 23 July 2010; Walpen, supra note 50.

56 Walpen suggested setting up a register of analysts, from which newly created tribunals could pick, which, according to his knowledge, has not been implemented; E-mail to author, Laurent Walpen, 23 June 2010.

57 Personal interview, Mohmamed A. Lejmi, Den Haag, 20 October 2009.

58 Academics specialized in African history were used as experts in court and gave advice to prosecution teams. According to Wilson, ICTR relied heavily on Alison DesForges’ book, which became a sort of official history, Wilson, supra note 39, at 172–3.

59 Job announcements are often written by people, who do not fully understand analysis and the skills and experience required; E-mail to author, Philip Coo, 19 October 2014.

60 Wilson, supra note 39, at 80–6, quote at 80.

61 Wilson, supra note 39; see Wilson, R.A., ‘Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia’, (2005) 27 Human Rights Quarterly 908 CrossRefGoogle Scholar.

62 Wilson, supra note 39, at 189.

63 Wilson, supra note 39, at 223. Wilson is positive about the LRT model, but presumably because he is not aware of the preceding ‘second phase’ units, he wrongly assumes that teams like LRT were a novelty; ibid., at 85–6.

64 A useful overview is provided by Townsend, supra note 30, who also includes charts. The charts indicate only the administrative outlines (like the number of employees with a certain rank), but not necessarily which professional category they belong to. This illustrates the limits of publicly accessible documents on the question.

65 Markus Eikel, a PhD in history, worked as a historian at CAHWC, as an analyst at ICTY and now as an investigator at the ICC; Personal interview, Markus Eikel, Den Haag, 2 January 2008. The fact that people can change from analyst to investigator lessens tensions between the two groups.

66 The Cambodian Genocide Program (CGP) was set up in 1994 at Yale University; in 1997 the Documentation Center of Cambodia was established in Phnom Penh. The literature is extensive. See on the Yale Program B. Kiernan, Genocide and Resistance in Southeast Asia: Documentation, Denial and Justice in Cambodia and East Timor (2008). On negotiations leading to the court see C. Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (2005); Etcheson, C., ‘Designing Justice for Cambodia's Khmer Rouge’, in Carey, J., Dunlap, W. and Pritchard, J. (eds.), International Humanitarian Law (2006)Google Scholar, Vol III. On potential defendants see Heder, S., ‘Reassessing the Role of Senior Leaders and Local Officials in Democratic Campuchea Crimes: Cambodian Accountability in Comparative Perspective’, in Ramji, J. and van Schaack, B. (eds.), Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts (2005)Google Scholar.

67 E-mail to author, Stephen Heder, 20 September 2014.

68 E-mail to author, Stephen Heder, 20 September 2014; E-mail to author, Craig Etcheson, 24 July 2014.

69 E-mail to author, Craig Etcheson, 24 July 2014.

70 E-mail to author, Craig Etcheson, 24 July 2014; E-mail to author, Stephen Heder, 11 September 2014.

71 E-mail to author, Craig Etcheson, 24 July 2014.

72 Townsend, supra note 30, at 302–3, 306–10.

73 Dr. Stephen Heder was full-time staff at ECCC between 2006 and 2008, and a consultant from 2008 to 2011. Dr. Heder is a Research Associate at the School of Oriental and African Studies in London.

74 Dr. Craig Etcheson, formerly at CGP and DC-Cam, was at ECCC from 2006 till 2012. After Etcheson left, OCP was without ‘formally designated investigators, researchers or analysts’; E-mail to author, Craig Etcheson, 24 July 2014.

75 E-mail to author, Craig Etcheson, 24 July 2014; E-mail to author, Stephen Heder, 11 September 2014.

76 As Heder puts it, the structure ‘emerged out of small-scale chaos’; E-mail to author, Stephen Heder, 11 September 2014. E-mail to author, Craig Etcheson, 24 July 2014. In the beginning, people had to be switched around a lot. Heder, for example, was seconded to OCP for six months in 2006.

77 E-mail to author, Stephen Heder, 11 September 2014; E-mail to author, Craig Etcheson, 24 July 2014.

78 E-mail to author, Stephen Heder, 20 September 2014. Police reacted particularly negatively to female non-police staff members.

79 E-mail to author, Stephen Heder, 11 September 2014.

80 E-mail to author, Craig Etcheson, 24 July 2014.

81 J. Ciorciari and A. Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (2014), 270.

82 See Hamilton, T. and Ramsden, M., ‘The Politicization of Hybrid Courts: Observations from the Extraordinary Chambers in the Courts of Cambodia’, (2014) 14 International Criminal Law Review 115 CrossRefGoogle Scholar.

83 Townsend lists an ‘Intelligence Analysis Group’. This refers to Secret Service Intelligence; Townsend, supra note 30, at 281. ‘Conflict mapping’ done by an NGO (No Peace Without Justice) was considered a sufficient basis for the facts, see Smith, A., ‘The Expectations and Role of International and National Civil Society and the SCSL’, in Jalloh, C.C. (ed.) The Sierra Leone Special Court and its Legacy: The impact for Africa and International Criminal Law (2014), 46 Google Scholar, on mapping at 56–7. This problem is reflected in Jalloh's substantial book, in which every angle of the SCSL is covered, but no other article deals with fact-finding.

84 P. van Tuyl, Effective, Efficient and Fair? An Inquiry into the Investigative Practices of the Office of the Prosecutor at the Special Court for Sierra Leone, War Crimes Studies Center, University of California Berkeley, September 2008.

85 Ibid., at 12. According to Tuyl, the independence of investigators might have been too great. Tuyl's report deals with investigative practices which led to the abuse of certain fundamental due process rights of the defendants.

86 Ibid., at 13. This view is supported by a high-ranking UN official, Ralph Zacklin, former Assistant Secretary-General for Legal Affairs, see Zacklin, R., ‘The Failings of Ad Hoc Tribunals’, (2004) 2 JICJ 541 Google Scholar. However, a report by Antonio Cassese, commissioned by the UN, shows that this objective was not achieved; see Report on the Special Court for Sierra Leone, Submitted by the Independent Expert Antonio Cassese, 12 December 2006, available at www.rscsl.org/Documents/Cassese%20Report.pdf#search=“Report on the Special Court for Sierra Leone Submitted by the Independent Expert Antonio Cassese” (accessed 13 September 2015).

87 Dufka was in Sierra Leone since 1999, worked for Human Rights Watch and took a year off in 2002-2003 to assist the SCSL; Tuyl, supra note 84, at 41.

88 Ibid., quoting Dufka, at 43.

89 Ibid., quoting Dufka, at 44.

90 Ibid., quoting Dufka, at 44–6.

91 See, for example, the comments by a social anthropologist on transitional justice initiatives in Sierra Leone, like the ‘Disarmament, Demobilization and Reintegration Program’ and the Sierra Leonean Truth and Reconciliation Commission. Through interviews with local people Shaw comes to a much less positive assessment than what was claimed internationally; Shaw, R., ‘Linking Justice with Reintegration? Ex-combatants and the Sierra Leone Experiment’, in Shaw, R., Waldorf, L. and Hazan, P. (eds.), Localizing Transitional Justice: Interventions and Priorities After Mass Violence (2010), 111 Google Scholar; Shaw, R., ‘Memory Frictions: Localizing the Truth and Reconciliation Commission in Sierra Leone’, (2007) 1 Int. J. Transit. Justice 183 CrossRefGoogle Scholar.

92 L. Gberie, The Civil Defense Forces Trial: Limit to International Justice, in Jalloh, supra note 83.

93 Hoffman, D., ‘Citizens and Soldiers: Community Defense in Sierra Leone’, in Gberie, L. (ed.), Rescuing a Fragile State: Sierra Leone 2002-2009 (2009)Google Scholar. See Hoffman, D., ‘The Meaning of a Militia: Understanding the Civil Defense Forces of Sierra Leone’, (2007) 106 African Affairs 639 CrossRefGoogle Scholar; D. Hoffman, The War Machines: Young Men and Violence in Sierra Leone and Liberia (2011).

94 Hoffman, ‘Citizens and Soldiers’, supra note 93, at 639.

95 T. Kelsall, Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone (2009), Chapters 2, 3, 5. Another issue was the influence of magic thinking, ibid., chapter 4. I. Bantekas, ‘Legal Anthropology and the Construction of Complex Liabilities’, in Jalloh, supra note 83.

96 Bantekas, ibid., at 190.

97 Kelsall, supra note 95, at 256. Similar allegations have been made against the ICC, see, T. Allen, Trial Justice: The International Criminal Court and the Lord's Resistance Army (2006).

98 N.A. Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2010), at 172; see Combs, N.A., ‘Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials’, (2009) 14 UCLA Journal of International Law and Foreign Affairs 235 Google Scholar, at 235.

99 Petit, Akerson and Warren, supra note 42, at 11.

100 Petit, Akerson and Warren, supra note 42, at 2–3, 48–9, 51–5, 61–4, 91–3, 147–8. The necessity of researching any information about a potential witness and the possibility of problems with multiple statements by the same witness are also listed.

101 Petit, Akerson and Warren, supra note 42, at 13–15, 51–2, 55–60, 62–3, 88–9, 144–51, 154–9, 170. One commentary describes the value of country specialists succinctly: ‘Analysts are often world experts on particular issues. They may be amongst the only people to have viewed particular collections of relevant documents and there may be no one outside the tribunals with an equivalent level of highly specialized knowledge and skill’, ibid., at 145.

102 Petit, Akerson and Warren, supra note 42, at 1–2, 19–20, 55–6, 124–31.