Digital Accountability Symposium: Intersectionality and International Criminal Investigations in a Digital Age

[Ulic Egan is a Swansea University Research Excellence Scholar at the Hillary Rodham Clinton School of Law, Swansea University, UK.]

The use of open source investigative methodology and user-generated content has the potential to be hugely transformational in the pursuit and democratisation of international criminal justice. The abundance of video information relating to some conflicts is staggering. Event reconstruction and demonstrative digital modelling visual presentation platforms can play an influential role in the pursuit of justice by assisting counsel in presenting and explaining complex scenarios to judges and juries. Documenting and archiving videos and other online content may provide essential counter-narratives to those offered by entities implicated in atrocity crimes. 

However, the use of such new technologies and methodologies necessitates a considered approach to international criminal investigations. As McDermott, Murray and Koenig have pointed out in their post, there is a danger of victim invisibility.  Intersecting modes of oppression or vulnerabilities such as for example, gender, sexuality, language, education, location, wealth, infrastructure, age, political affiliation, ethnicity, may perpetuate invisibility and potentially limit access to justice and diminish accountability for  crimes committed. Not everyone has access to, or the ability to use, the internet or advanced digital devices. What types of crimes are visible online? Do they represent the full spectrum of criminality or are crimes committed in ’the public square’, more prominent, whilst other crimes, such as detention and sexual violence become, in a sense, invisible? International criminal investigation teams must consider such factors to counteract this possibility and can do so by integrating an intersectional approach to investigation.

Digital Equality?

There are severe implications for representation with the use of these technologies. The internet provides a platform for the mass dissemination of information relating to armed conflicts and this, on the face of it, is a positive development. However, it encompasses an inherent danger by focusing global attention to armed conflicts occurring in areas with better access to technology and creating an atrocity bias. The world is fully aware of the dire situation and human suffering in the Syrian conflict, from where there are more hours of that conflict online than there have been hours of the armed conflict itself, but how many are up to date on the plight of those affected by crimes against humanity in less technologically diverse areas such as, for example, North Korea? 

The use of technology in this way arguably enables a focus on the suffering of some to the detriment of others. Those who cannot afford or have limited access to relevant technologies, or who live in societies where access is limited based on gender or wealth or who live in states that have complete control over internet access, content, usage, and functionality run the risk of becoming ‘invisible’. Furthermore, the move towards increased use of machine learning to assist in filtering evidence which primarily focuses on identifying objects, such as weapons and vehicles, may contribute to prioritising certain crimes while other crimes remain hidden from view.

Vulnerability may also be present in less obvious ways and may affect human rights documentation groups who do not have the expertise or the means to, for example, verify videos and weed out false or misleading information but are successfully documenting crimes on the ground. There is a danger that their work may be overlooked or underfinanced due to a global fascination with newer forms of evidence. There are possible future scenarios wherein those capable of collecting vital evidence do not receive the necessary funding to do so due to global and donor interest in the use of technology.

Of course, global attention does not necessarily equate to investigative attention. However, the question remains that if international criminal investigations move to rely more heavily on open source or user-generated evidence, will they end up primarily focusing on more easily accessible and collectable information and, therefore, creating a situation or suspicion of selection bias? Open source information is a very useful resource to show that war crimes are occurring but may not be as effective in linking those crimes to those deemed ‘most responsible’, those higher up in the chain of command. This could mean that investigative capital and resources may become overly focused on the availability of online evidence and on relatively low-level direct perpetrators.  

Intersectional approach

My research argues that an intersectional approach to investigations will help avoid many of the possible pitfalls that may accompany the use of technology in international criminal investigations. An intersectional investigative approach is one that integrates analysis of how location, gender and wealth, for example, affect an ethnic, racial, national or other group’s access to technology. I argue that such an approach will facilitate a more just criminal justice approach by highlighting possible fault lines in the use of particular forms of evidence in investigative approaches.

Investigative strategies should counter a lack of access to justice due to little or no internet access in a specific part of a conflict-affected country by identifying those areas and ensuring that investigators gather evidence by other means. Investigators must be aware of, and able to deal with, the fact that gender identity within different societies may determine or limit access to technology and acknowledge that language is a barrier preventing access to, or visibility on, the internet.  Investigation teams should have strategies in place to identify and deal with situations where political realities and related persecution may cause reluctance to report crimes online. They should always have active policies in place to ensure the full representation of all victims and resist the temptation to prioritise crimes solely because they are documented online or on video.

An intersectional investigative approach should also include a review of security and ethical concerns and integrate a gendered, ethnic, racial and political approach to analysis. Investigators should consider how restrictions imposed by the conflict intersect with modes of oppression already inherent in society and take this into consideration when analysing the availability of online information and evidence. They might question whether specific individuals are more at risk and why.

Investigation strategists should follow several research queries before deciding on an investigative strategy. For example, are LGBTQI identities particularly vulnerable or even a specific target? What gender-related issues are present in affected societies and what is the best approach with these in mind? Does such influence the types of crimes appearing online and how? Does the political situation make it more dangerous for certain ethnicities, nationalities, or other political identities to report crimes online or even have an online presence at all? Are there sufficient language capabilities on investigative teams to identify atrocities committed against those who may not have linguistic visibility online? Do investigators conduct an adequate number of victim/witness interviews outside of urban areas where restrictive internet access means crimes are not reported online? Are artificial intelligence technologies being used perpetuating a patriarchal bias by focusing on weapons, vehicles, and crimes committed in the open square to the detriment of less visible crimes? 

An intersectional investigative strategy places these and similar questions at the very centre of analysis, and although such analysis will not be able to fix the investigative bias deficiencies enabled by the use of technology, by identifying such deficiencies, investigative teams and strategists can adopt policies and approaches to offset them. Furthermore, integrating an analysis of the experiences of those enduring conflict and their related accessibility to, and interaction with, relevant technology will help negate bias concerning the use of such for international criminal investigation.

This approach would promote inclusivity and help avoid mass or simplified essentialist categorisations, an arguable pitfall in previous investigative approaches. Investigation teams could build on already well established gender-based approaches and implement intersectional perspectives by ensuring that investigative skills are complimented with other expertise and by identifying the intersection of cultural, sociological, economic, political and legal realities for those affected by the conflict and by placing that knowledge at the centre of the investigative approach. This approach would encompass an intersectional perspective to investigative methodology, the composition of the investigation team itself, in addition to the analysis of the conflict and victims, by identifying where cultural, sociological, technological, and gender considerations intersect and by applying this to the overall investigative strategy and planning.

This could be achieved through cross-fertilization of knowledge sources and skill sets implemented through pre-investigation research assessments, workshops, training, impact assessments and importantly by actively engaging with the groups and individuals affected by the conflict. This will enable international criminal justice advocates to tackle crimes more effectively by focusing prosecution strategies while simultaneously identifying what justice means to those in whose name investigations are carried out, which may not be evident to those who are not from such societies. By integrating such an approach to investigations, we can help to offset Western-imposed biases by incorporating the lived experiences of those most affected by the conflict and help enable visibility for all affected by war crimes, crimes against humanity and genocide.