Old Evidence and Core International Crimes

International criminal law does not recognize statutes of limitation for war crimes, crimes against humanity and genocide. Prosecution services should not, according to international law, loose their authority to prosecute these crimes even if several decades have passed. For this reason and as part of an international trend of increased use of accountability for such crimes, some serious violations that occurred during World War II, in Indonesia in the 1960s, in Bangladesh and Cambodia in the 1970s, and in Iraq in the 1980s have in recent years been investigated and occasionally prosecuted, even if suspects, victims and their family members are old and frequently frail. Although there are open wounds that undermine deeper reconciliation in societies affected by the crimes, the younger generations may have limited knowledge of the victimization caused by them. Political support for trials may even be unstable.

None of these challenges in criminal cases for core international crimes that occurred decades ago were the specific concern of this seminar. Rather, the focus was on questions caused by the existence and use of ‘old evidence’ in core international crimes cases. Witnesses are old and may be traumatised. Their memory may be affected. They may have told their story many times, including in the form of interviews that may have been made public. They may have spoken extensively with other victims or potential witnesses, even influencing collective memory. Documents and other physical evidence may have passed through many hands. The chain of custody may not be clear. Archives may have been broken up, destroyed or become illegible. Mass-graves and crime scenes may have been interfered with. Experts and other persons with particular knowledge of the context in which the crimes were committed may have died, and there may be particular challenges linked to insider witnesses. Potential witnesses may have moved on to such an extent in their lives that they do not wish to reopen a traumatic past by co-operating with criminal justice.

These are among the issues that this expert seminar and the project anthology deal with, drawing on the expertise of contributors who have worked on old-crime cases in Bangladesh, Cambodia, Indonesia, Timor-Leste, ex-Yugoslavia and linked to World War II, including Judge Alphons M.M. Orie, Judge Agnieszka K. Milart, Mr. Andrew T. Cayley, Professor David Cohen and Dr. Patrick J. Treanor. CILRAP is pleased to have been the first to place the issue of ‘old evidence’ and core international crimes on the international criminal justice agenda, by conceiving and convening this seminar and project anthology (which is evolving through new editions).