Documenting Human Rights Atrocities for Eternity? - On the Contingency for a Universal Documentation Repository of Evidence for Prosecuting International Crimes

Armed conflict in recent years – particularly in the context of Syria, Ukraine or, most recently, the War in Gaza – has increasingly been accompanied by a stark increase in the production and gathering of most different kinds of evidence. Significantly amplified by the ubiquitous integration of smartphones and digital repositories, the sheer availability of documentary material has led to a proliferation of both the volume and breadth of accumulated evidence. We argue that addressing this challenge necessitates the establishment of a meticulously structured, impartially governed, and inherently trustworthy framework – both from an organizational as well as from normative vantage point – and that, accordingly, the question of comprehensively collecting, storing, validating, and accessing such documentation needs to be fundamentally re-considered. Ultimately, such a novel legal-organizational framework could lastingly ensure the credibility and reliability of such an extensive evidence archive within legal and investigative domains, at the same time enhance the effectiveness of international criminal justice and hence provide more justice to more victims. The existing multifaceted landscape of investigative methodologies within (international) criminal justice systems yields diverse evidentiary sources, hence encompassing user-generated, digital, and traditional forms of evidence. However, the absence of a centralized entity tasked with systematically collecting and archiving especially the first two forms of evidence impedes efficient cross-utilization among domestic, regional, and international investigative agents and jurisdictions. Further expanding on the proposition to establish a permanent ‘UN Investigative Entity’ , this paper emphasizes the growing need for creating a permanent “Universal Documentation Repository of Evidence for Prosecuting International Crimes”. This entity would thus be envisaged to consolidate and archive diverse kinds of evidence, while fostering the development of a unified standard of interoperability – comparable, for example, to an enhanced iteration of the Berkeley Protocol requirements. Thereby, this paper essentially endeavors to promote the concept of a horizontal cooperative forum that bridges existing gaps for operating investigative mechanisms, which have thus far mostly been working vertically alongside each other. In order to illustrate and substantiate our argument, we aim to analyze four distinct categories of investigative mechanisms: (1) UN investigative bodies, (2) international criminal tribunals, (3) regionalized approaches (for example within the context of the Genocide Network and Europol) as well as (4) domestic approaches (such as inter alia the so-called ‘structural investigations’ as currently carried out by the German Federal Public Prosecutor). This categorization is essentially founded upon pragmatic challenges encountered by these different investigative mechanisms across diverse crime typologies, hence guiding our analysis and the proposal for a more sophisticated horizontal framework. While exploring the practicalities of establishing and sustaining this framework, the paper also recognizes contingent challenges and, consequently, highlights eventual caveats, including constraints on (financial) resources, the need to define the framework’s scope of authority while ensuring balanced accessibility for pertinent investigative entities, as well as practical difficulties arising from the inherent need to universalize and standardize the obtainment of most different kinds of evidence.