Open-Source Digital Evidence in International Criminal Cases: A Way Forward in Ensuring Accountability for Core Crimes?

[Konstantina Stavrou is a researcher and PhD candidate at the Ludwig Boltzmann Institute of Fundamental and Human Rights in Vienna.]

Introduction

Seventy-five years after the initiation of the first international criminal trials for the atrocities committed amid the Second World War, the fight against impunity continues. Over recent years, core international crimes, encompassing genocide, war crimes, crimes against humanity, and the crime of aggression, are being perpetrated across the globe, including for instance in Syria and Myanmar. In the majority of cases, governments appear unable or unwilling to investigate the alleged commission of crimes in their territories, reinforcing the need for alternative solutions, either through international(ised) courts and tribunals or through domestic investigations by third states. Nevertheless, the lack of evidentiary material about core crimes poses impediments in the initiation of international criminal processes. Consequently, the question of how sufficient evidence could be acquired to facilitate future investigations and prosecutions of core crimes remains.

The Role of Technology in International Criminal Proceedings

The reliance on technology to ensure evidence for the commission of atrocities, in addition to witness and victim testimonies, is not new to international criminal justice. From the Nuremberg military trials, analogue photographs, films, and government and military records were used as sources of evidence. Following the creation of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), the reliance on digital tools emerged. The recent proliferation and advancement of technology in combination with the evidentiary issues faced in the cases of core crimes have increased the collection of and reliance on digital evidence in international criminal proceedings. The Al-Werfalli case before the International Criminal Court (ICC) illustrates the growing significance of digital evidence, including from social media. Finally, voluminous digital documentation of atrocities committed in Syria uploaded to social media platforms constitutes a valuable source of evidence for criminal proceedings in third countries and showcases the potential of digital evidence.

Open Source Digital Evidence: Opportunities and Challenges

Following the escalation of violence in Syria, a new type of digital evidence called ‘open source evidence’ is gaining increasing attention, due to its potential to assist in overcoming one of the main obstacles in international criminal proceedings against core crimes, namely evidence. The term refers to information publically available, generally acquired through the Internet, and may include, among others, social media content, images, videos, and audio recordings on websites. Open source digital evidence can become of particular significance in cases in which international investigations, including by the ICC, are subject to legal or political obstacles. Similarly, this type of evidence is key when international investigations are not permitted in the territory where the crimes took place, or when investigators have limited access to territory. Introducing open-source digital information can provide evidentiary material regarding the commission of crimes, which might otherwise be lost or destroyed during the lapse of time.

Despite the previous use of technology during criminal proceedings, open source digital evidence and its use by courts requires particular attention as they entail several unprecedented risks. The expansion of digital tools, making them broadly available, has resulted in the engagement of individuals, including perpetrators of crimes, in documenting atrocities. These individuals do not necessarily adhere to criminal investigations’ standards and practices and, thus, issues of biases and reliability of evidence come to play. Moreover, technological advancements enable individuals to easily interfere with and manipulate digital information, raising questions about its credibility and authenticity, in contrast to previous trials when the use of technology was limited and mainly available in analogue form. Lastly, the lack of common standards regarding the collection and analysis of open source information can pose challenges in its admissibility as evidence in criminal trials. In light of these concerns, the admissibility of this source of evidentiary material in international criminal proceedings is not guaranteed.

The Berkeley Protocol on Digital Open Source Investigations

Organisations involved in documentation and evidence collection have already released guides (see here and here) to ensure that useful evidence is captured, authenticated and archived. Nevertheless, organisations usually pursue diverse goals and the methods they employ in the documentation of atrocities and the collection and verification of evidence might differ as well. Hence, the information submitted as evidence by several actors in the context of criminal proceedings might lack similarities regarding for instance the level of detail and accuracy. The assessment of a broad variety of information could prolong accountability processes, while potentially not being of substantial value as evidence.

To respond to the aforementioned problems, the Berkeley Human Rights Centre launched, in cooperation with Office of the High Commissioner for Human Rights, the Berkeley Protocol on Digital Open Source Investigations. Following a presentation of the applicable principles, framework, and security considerations, the Berkeley Protocol covers aspects of the investigation process. More precisely, the Protocol includes the preparation and planning of investigations and delves into the different investigatory steps, including the puzzling procedures of evidence collection, verification, and analysis.

Based on consultations with experts on the topic, the Berkeley Protocol combines best practices and creates the first universal comprehensive standards on open source investigations. Concrete guidance and steps for all investigatory phases will assist organisations and individuals in collecting accurate and reliable evidence that could be admissible in court. Even though of non-legally binding nature, the common standards in the Protocol could harmonise the practice and methodologies of evidence collection for core crimes and reduce differences between evidence collected by several actors. In this sense, the Berkeley Protocol could contribute to expediting the commencement of criminal proceedings by advancing the processing of open source evidence of similar detail and precision.

Similarly, the specific processes for open source investigations included in the Protocol could serve as reference for professionals working in courts during the preliminary assessment of the authenticity and reliability of open source evidence. This could be particularly useful for professionals not yet familiar with new forms of digital evidence, such as open source evidence, and the risks they entail.  Due to authenticity concerns about open source evidence, related to deep fakes, the guidance in the Berkeley Protocol could assist lawyers and judges in conducting additional thorough verifications of the information submitted and in deciding whether it could be presented as evidence. In this way, multiple examinations of open source evidence could reduce concerns about the authenticity of the evidence and its role in accountability processes.

Quality of evidence is a first step in building strong cases regarding core crimes and promoting the accountability of perpetrators. In this respect, the Berkeley Protocol presents a unique opportunity to guide international investigators and to promote the admissibility of open source digital documentation of core crimes as evidence in court. However, as the Protocol provides guidance regarding the investigations stage, further challenges from the use of open source digital evidence during the pre-trial and trial proceedings are not excluded. In addition to considerations of the evidence per se, judges and prosecutors should safeguard fair trial guarantees, including the equality of arms, for the defendants.

Conclusion

Securing sufficient and precise evidence about the perpetration of core crimes remains a challenge in international criminal law. The use of open source digital evidence can prove a valuable response to investigatory stalemates in a number of cases such as Syria. Responding to inherent concerns of open source digital information, such as biases, authenticity, and credibility, the Berkeley Protocol is a valuable tool to assist the efforts of investigators and ensure the admissibility of this type of evidence in criminal proceedings for core crimes. Nonetheless, as open source evidence is introduced as a way to reinforce prosecutions, its careful examination during the pre-trial and trial stages is needed to safeguard defendants’ rights and the fairness of proceedings.