HAROLD ASSOU-DODJI MPhil Seminar Presentation @2023

The Components of Criminal Investigations and How They Help in Investigation

MPhil Seminar Presentation

University of Education, Winneba

(11 April 2023)

INTRODUCTION
Criminal investigation occurs when a crime has been committed and the investigation is a
systematic enquiry into the crime or crimes that has/have been committed. The investigation
uses an ensemble of methods through which the crime is studied and the criminals
apprehended. In this respect, and depending on whether the crime being investigated is an
international crime (falls under the Rome Statute of the International Criminal Court (ICC)) or
not, a government law-enforcement entity or an international team of experts in crime scene
investigation respectively is tasked to establish the identity of the author(s) (who) of the crime,
the reason or reasons (why), the duration and timelapse (when) of the events and the
circumstances that led to the crime being committed, and the modus operandi (how) used in
committing the crime. The report of the investigation is usually relied upon by prosecutors for
criminal prosecution during a trial process. Generally, there must be a presumption of
innocence1 during the criminal investigation process and any or all personnel involved in the
investigation are expected to adopt a neutral stance in their approaches to the criminal
investigation. The presumption of innocence is necessary not only for the purposes of avoiding
political interference, prejudgment of guilt during criminal investigations and fully respecting
the rights2 of persons arising under the Rome Statute, but also for enforcing the principle of the
State’s responsibility to protect (R2P) and preventing state actors from arbitrary use of power
to silence perceived enemies, a situation that may lead to the collection or fabrication of biased
or tainted evidence for the trial process. However, the presumption of innocence should not be
understood to lessen the duty to prosecute if the evidence is there or when an evidentiary
threshold is met. The UN Human Rights Committee (UNHRC), in its ‘General Comment’ on
Article 14 of the International Covenant on Civil and Political Rights, has insisted that the
presumption of innocence imposes a duty on all public authorities to ‘refrain from prejudging

1
A person is ‘presumed innocent’ if that person is a defendant in a criminal trial and is assumed to be innocent until
he/she has been proven guilty by the decision of the trial court.
2 Cf. 54 (1)(c) of the Rome Statute of the ICC

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the outcome of a trial, by abstaining from making public statements affirming the guilt of the
suspect”.3

THE COMPONENTS OF A CRIMINAL INVESTIGATION

The purpose of a criminal investigation is to establish the truth of whether a crime has been
committed. According to Nystedt, Nielson, and Kleffner (2011), criminal investigation has two
broad levels or categories linked to each other and are referred to as crime base investigation
and leadership structure investigation. Crime base investigations focus on when (the timeframe
and chronology of events) and why (circumstances, trigger events and facts) the crimes were
committed, who (the actors involved and present at or near the crime scene) are directly
responsible and can be criminally held responsible. Investigation at the leadership structure
level focuses on those persons who, even though they might be far away from the crime scene,
are most responsible for the serious violation of International Humanitarian Law (IHL) and
human rights. Chains of command are analysed, sources of funds that enabled the commission
of the crime are traced, leading to the identification of both financiers and profiteers of the
crime. It is therefore crucial that both incriminating and exonerating circumstances are given
equal weight during the criminal investigation in order to guarantee and protect the
presumption of innocence.

When gross violations of human rights and of the IHL are committed or are being committed,
the United Nations intervene by activating its Human Rights Council’s investigative
mechanisms such as Commissions of Enquiries (CoIs), Fact-finding Missions (FFMs) and
other non-conventional mechanisms focus on monitoring, investigating and establishing facts
and circumstances of gross abuses and violations of international humanitarian law and human
rights (Global Centre for R2P, 2019). An impartial, untainted and conclusive criminal
investigation at both the crime base and leadership structure levels is possible only when certain
key components are involved in the process. These key components can either be part of
investigative tasks or investigative thinking.4 The first key component, which is part of the
investigative tasks focuses on (I) the collection of information and evidence while the second,
which is an investigative thinking process, focuses on (II) the analysis of the information and

3 General Comment 13/21, UN Doc. A/39/40, pp. 143–7.

4 According to Gehl and Plecas (2016:46-47) of the Justice Institute of British Columbia, investigative tasks are those primary
activities such as identifying physical evidence, gathering information, evidence collection, evidence protection, witness
interviewing, and suspect interviewing and interrogation whole investigative thinking is aimed at analysing the information
collected, developing theories of what happened, the way an event occurred, and establishing reasonable grounds to believe.

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evidence collected. The third key component is (III) the development and validation of a
theory, leading to (IV) a final conclusion of the investigation (i.e., forming reasonable
grounds or probable cause) that will give rise to (V) the arresting and charging the suspect.
We will use the example of the Darfur crises in Western Sudan to critically examine these
components and how they helped in the investigations.

(I) Collection of information and evidence. This component is part of the investigative
task and comes in three forms: documentary evidence, witness evidence, and forensic evidence.
The collection of information and evidence can often be complicated and unpredictable in
terms of the order in which events take place and the way evidence and information being
sought become available. It can be difficult, if not dangerous, for investigators to obtain
information or evidence that will lead to criminal prosecution. Sometimes, the fear of renewed
attacks from perpetrators, the trauma suffered, the tainted self-image, and the shame and stigma
associated with being a victim could make victims of serious human rights violations refuse to
talk to investigators and provide the necessary information and evidence. Even if they are able
to, victims’ memories and recollection of events, or their ability to accurately describe their
aggressors could be impaired. At other times, potential witnesses may fear self-incrimination
or reprisal attacks on themselves or on their families. This is because criminals or their
paymasters are often alert about the possibility of arrest based on crime scene evidence
obtained from furtive investigations. For this reason, and to avoid being linked remotely or in
any way to the crime, they would do everything possible to obstruct the investigative process
by concealing, contaminating, or erasing any piece of evidence that could be linked to them.
Other impediments to the collection of information and evidence could include lack of
cooperation with human rights monitors and crime scene investigators5, blocking of access to
the crime scene6, contamination or destruction of potential or available evidence, bribing or
threatening witnesses or potential witnesses, or even worst still, assassinating witnesses, such
as the recent case involving the murder of Cloete Murray (and his son, Thomas Murray), a top
South African accountant and investigator who was investigating a high-profile economic
crime.7

5 Karim A. A. Khan KC, ICC Prosecutor, noted the lack of cooperation from the Sudanese government in the 36th Report of
the Office of the Prosecutor of the ICC to the United Nations Security Council on the Situation in Darfur pursuant to Resolution
1593 (2005). See para. 37, 40-43. [Online] Accessed: 8 April 2023. Available at: https://www.icc-cpi.int/news/statement-icc-
prosecutor-karim-khan-kc-united-nations-security-council-situation-darfur
6 Ibidem
7
Transparency International, a global coalition against corruption, reported of the murder on 18 March 2023 of Cloete
Murray, a top South African investigator of high-profile social and economic crimes. Murray, who was assassinated together
with his Thomas, was at the time of his assassination, a court-appointed liquidator for the state-captured African Global

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Information obtained during criminal investigations can come in different forms, such as video
footages or audio recordings, written documentation such as minutes or notes taken during
meetings when the crime was planned or discussed, witness statements, past/previous patterns,
or forensic evidence (including fingerprints, artefacts, and other objects that could be linked to
both victims and their aggressors). The investigation may also use methods such as analysing
the modus operandi, the technique and trademark of the criminal, and accessing various public
and private records. It is important to note that there is a difference between information and
evidence. An information (material or soft) is not and cannot be necessarily considered as
evidence unless it is linked directly to the who, when, why, and how of the crime. Evidence, on
the other hand is necessarily an information.

CASE IN POINT: The Darfur crises in Western Sudan started in 2003 when a group of black African tribes
launched an armed rebellion against the Sudanese government over complaints of racial discrimination,
economic neglect, and underdevelopment. The government of Sudan responded with a scorched-earth military
raids and aerial bombardments, arming local Arab-Africans known as the ‘Janjaweed’8 to kills the rebels. Two
years down the line, in its 2005 report to the United Nations Secretary-General, the International Commission of
Enquiry on Darfur noted that ‘government forces and militias conducted indiscriminate attacks, including killing
of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence,
pillaging and forced displacement, throughout Darfur.’9 These findings were the result of an investigative process
to collect information and evidence on gross violations of IHL and human rights in the Darfur region.

(II) Examination/analysis of the information and evidence collected. This component is

also called criminal investigation analysis. It refers to the practice of pulling together various
facts and circumstances about a crime or a potential criminal situation in order to develop a
picture of who the perpetrator or suspect might be. During the process, investigators try to find
consistency in the information and evidence gathered, and establish linkages between the
unknown suspects and the crime scene. The process relies heavily on the investigator’s analytic
mindset, prowess and intelligence. Once all the information collected have been determined to
be directly linked to the crime scene, a profile of the unknown suspect is built, with all the
characteristics, traits and features of the crime scene. This set of information is often referred
to as signature mark of the crime suspect. In the process, investigators scrutinise all forms of

Operations company – a company to which many politically connected figures in the South African government were linked.
See story as reported here: https://www.transparency.org/en/press/investigation-cloete-murray-killing-top-priority
8
‘Janjaweed’ is the name given to the nomadic Arab-Africans of light-skin colour whom the government of Sudan was
reported to have armed to carry reprisal attacks on black African tribes in Darfur.
9
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Geneva, 25 January
2005, p. 3. [Online]. Accessed: 8 April 2023. Available at: https://www.crisisgroup.org/africa/horn-africa/sudan/darfur-
international-communitys-failure-protect

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evidence and information gathered. Audio and phone records, video footages, minutes of
meetings, eyewitness statements, maps, chronology or timescale of events, pictures and
artefacts, etc., are examined. These are subjected to a series of litmus test or validation before
they can be used as pieces of evidence in any criminal prosecution. The validation process tests
the relevance, credibility, accuracy, and reliability (RCAR) of the information and their
sources. If it is determined, through examination or analysis, that the information gathered does
not satisfy any or all of these four criteria, then it cannot be considered as a piece of evidence
and consequently, cannot be relied upon for arrest and prosecution [read case in point below].
For example, evidence that does not relate to the law that that has been breached through the
commission of the crime is termed irrelevant, and evidence from a source with a past conviction
or questionable character is referred to as unreliable, and may therefore be discarded.

CASE IN POINT: 10
The trial of Bahar Idriss Abu Garda, former Chairman and General Coordinator of Military Operations of
the United Resistance Front, one of the Sudanese rebel leaders, took place in the Hague after he voluntarily
submitted himself to the court on 18 May 2009 following a summons to appear issued by the ICC Prosecutor.
The charges laid against him by the ICC prosecutor were based on findings by the International Commission
of Enquiry on Darfur, to the effect that there were reasonable grounds to believe that Abu Garda was
criminally responsible as a co-perpetrator or as an indirect co-perpetrator for three war crimes under article
25(3)(a) the Rome Statute:

(1) violence to life in the form of murder, whether committed or attempted, within the meaning of article
8(2)(c)(i) of the Statute;
(2) intentionally directing attacks against personnel, installations, material, units or vehicles involved
in a peacekeeping mission within the meaning of article 8(2)(e)(iii) of the Statute; and
(3) pillaging within the meaning of article 8(2)(e)(v) of the Statute.

However, on 8 March 2010, following a confirmation of charges hearing held from 19 to 30 October 2009
during which the detailed specific alleged crimes committed under the Rome Statute were unsealed against
the suspect, the Pre-Trial Chamber I found that the Prosecution’s allegations against Abu Garda were not
supported by sufficient evidence, and consequently refused to confirm the charges against him.

Criminal investigative analysis also employs profiling, a strategy used by crime scene
investigators to narrow down the list of potential offenders already compiled by law
enforcement authorities. Profiling involves observation, analysis, and documentation of the
behavioural patterns, biodata, personality, socioeconomic, cultural and political background of

10 Case Information Sheet, ICC-PIDS-CIS-SUD-03-004/16_Eng. Available at: https://www.icc-cpi.int/darfur/abugarda

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the crime suspect. This helps investigators to establish linkages between suspects, the crime
scene, and the commission of the crime itself. In doing, certain factors however can influence
the investigative analysis process. These factors are many and can include the nature of the
crime, skills and experience of investigators, corrupted or contaminated evidence, investigator
bias, the quality of the RCAR litmus tests, and lack of cultural intelligence in interpreting
communications or gestures respectively from crime scene audio or video records. Other
hindrances are investigator implicit bias, cooperation of witnesses and victims, legal and ethical
considerations, time constraints, resources available to investigators, and cross-unit
collaboration among the team of experts with their different skills set, among others.

Another activity during this step of the investigation is the identification of any gaps in the
evidence, and develop strategies to fill these gaps. The gaps may be in the chronological order
of events, or in material evidence. The criminal investigators ensure that every possible option
is exhausted in filling these gaps.

(III) Development and validation of a theory.

This component of the criminal investigation is part of the investigative thinking/analysis

process and involves the development and validation of a theory, in which the investigator
reports on a clear idea of what happened when and who the criminally responsible persons
could be, based on strong, credible and reliable evidence. In this process, the investigative team
of experts focus more on evidence in the light of the human rights laws suspected to have been
violated, by critically examining the case in order to determine whether the evidence in this
case meets the legal definitions or criteria of the crime.

An important task for investigators in this component is to examine the laws that apply to the
certain human rights violations. The assessment is made usually by human rights experts and
professionals regardless of whether the evidence shows all aspects or elements that a certain
law has been breached. This is the reason why the expert views and testimony of human rights
professionals either involved or not in the investigative process are important. They help the
criminal investigative team contextualise particularly one of the four litmus tests (i.e.,
relevance) of the evidence gathered (the other three, i.e., accuracy, credibility and reliability
left to of the other specialists on the team) in the light of the specific human rights laws deemed
to have been violated.

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(IV) Report of the investigation

At the end of the investigation, a report is produced and all the facts from the three previous
components are included (https://www.humanrightscareers.com/magazine/beginners-guide-
how-to-write-a-human-rights-report/). The report should essentially reflect a fundamental and
professional investigation that reveals the truth about the event, with credible and reliable
evidence. Many reports of the United Nations’ Fact-finding Missions (FFMs) or Commissions
of Inquiries (CoIs) into genocides, war crimes, and crimes against humanity aways include the
three components, that is, gathering of information and evidence, analysis of information and
evidence, and theory development and validation (e.g., UNSC, 2005).

(V) Arresting and charging of crime suspects

This is the fifth and final component of a criminal investigation into the three human rights
crimes under international justice. The criminal (or national human rights) courts base their
decision to issue arrest warrants on the reports of investigations presented to them by the
commission s of inquiries. In the case of the ICC, the following steps are involved:

• A charge sheet is prepared. Once the investigations are concluded and the suspects
have been identified through criminal profiling, a charge sheet detailing the specific
offenses, roles and responsibilities they played in the crime is established.
• Crime suspect is arrested. It is important to note that suspects in human rights atrocities
are always on the run or in hiding. It takes discretion and tactical approach from
criminal investigators to arrest such criminals. The national criminal courts or the ICC
base their decision to issue international arrest warrants on the reports presented to them
by the criminal investigators. may decide on any of the following methods to crime
suspects:
o Arrest warrant. An arrest warrant will be issued by the judge of the trial court
in the jurisdiction where the crime was committed. In the situation of
international crime under international jurisdiction of the ICC, the arrest warrant
is issued and State parties to the ICC have the obligation to arrest the suspects
for further transfer to the ICC. It is important to note that even countries that are
not party to the Rome Statute are obliged to arrest war crimes suspects and
transfer them to the ICC in the Hague, simply because the ICC decision in
issuing an arrest warrant is based on the referrals from the United Nations. The

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international police organisation (Interpol), an organisation of national law

enforcement agencies across the globe, is responsible for apprehending suspects
of war and human rights crimes and transferring them to the Hague. However,
governments still have the primary responsibility to enable such arrests and
transfer to the trial courts.
o Subpoena to appear. If the criminal suspect is suspected to have played a less
criminal role or is a direct or an indirect third-party person, a subpoena is issued
for him or her to appear before the trial court.

CONCLUSION

In conclusion, criminal investigation into any of the crimes of violation of international

humanitarian law and human rights recognised in the international justice system, is comprised
of five essential components, each relating and linked to the other. The accuracy and successful
completion of one component leads to the accurate and successful determination of the other
component high up in the investigative process. All the five components help investigators to
establish the facts of the case, identify suspects, and build a comprehensive case for criminal
prosecution.

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References

Gehl, Rod & Plecas, Darryl. (2016). Introduction to Criminal Investigation: Processes,
Practices and Thinking. (pp. 46-47). New Westminster, BC: Justice Institute of
British Columbia.]

Global Centre for the Responsibility to Protect (2019) Human Rights Council Investigative
Mechanisms and Mass Atrocity Prevention. [Online]. Accessed: 2 April 2023.
Available at: https://www.globalr2p.org/publications/human-rights-council-
investigative-mechanisms-and-mass-atrocity-prevention/

Nystedt, M., Nielson, C. A., & Kleffner, J. K. (2011). A Handbook on Assisting International
Criminal Investigations, (p. 42). Folke Bernadotte Academy, Stockholm.

United Nations Security Council (2005). Report of the International Commission of Inquiry on
Darfur to the Secretary General. (S/2005/60) Pursuant to Security Council
Resolution 1564 (2004) of September 2004.

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