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There are two pillars of international criminal investigation: crime base and linkage. Analysis is also a central element to the criminal investigation component and typically takes the form of political structure analysis, or crime based analysis. If one were to translate these terms used in investigation to the legal realm we can say that crime base is analogous to offences and linkage is linked to establishing the forms of participation (also known as modes of liability).
Crime base focuses on material elements of the offences of the alleged (or actual) underlying offences. In a broad sense, we can identify some main components to consider when analysing the crime base. These relate to the questions we should be asking ourselves and are: to whom, how, what, when, where.
Sources related to crime base evidence include but are not limited to: witnesses, forensic analysis, documentary information, evidence. Videos, media reports and forms of social media tend to fall under open sources and are more relevant to linkage. In criminal investigations victims may also be referred to as witnesses.
Linkage is concerned with the mental elements of the offences and, in particular, the material and mental legal requirements of the modes of liability. The main focus and interest during such international investigations is in highest level of perpetrators hence there is a great emphasis on command responsibility, JCE and joint purpose. Linkage is about connecting high level ranking officials to the physical acts of their subordinate.
Evidence to establish such link can be based on: documentation including intercepts and evidence regarding command responsibility, witness testimony, public documentations, suspect interviews/ interrogations.
By documentation we could be referring to recordings, intercepts, transcripts, contextual documentation. In particular these can be categorised into: open sources or closed sources, those generated by third parties to a conflict, documents generated by the belligerent parties to conflict, documents generated by the suspects.
Regime documentation is also essential. The ICTY found that Milosevic kept a very detailed diary throughout the war which served as fantastic evidence. High level commanders also issues many documents which include signatures and these are essential for evidence gathering. In terms of primary open sources for State actors one would need to look into the State’s constitution and the Gazette which in common law countries typically lists levels of ranking military officers etc. which is useful for establishing positions in chain of command. Interviews also create what is known as notice evidence which is where a suspect is put on notice that persons subordinate to him are perpetrating offences (essential to the mens rea of known or ought to have known).
Typically, witnesses to the underlying acts/crimes help more with crime base than linkage. Generally, you do not want to ask a witness the who question as you may illicitly receive factual incorrect notions and it is recorded and handed as a gift to defence council. One method is to build a strong linkage case first and finalise the crime base later. One key form in linkage witness is insiders, in fact case would not be very feasible without an inside witness as there would be things that simply wouldn’t make sense where analyst cannot figure out exactly what the situation is. The insiders could shed light on such confusion and clarify the overall linkage.