10 Feb Symposium on Fairness, Equality, and Diversity in Open Source Investigations: Re-Imagining Standards of Fairness in Open Source Investigations: A Commentary on Fact-finding in the Tigray Conflict
[Ruwadzano Patience Makumbe is a human rights lawyer. Edward Kahuthia Murimi is a Kenyan lawyer. They are both currently undertaking PhD research as part of the ‘DISSECT: Evidence in International Human Rights Adjudication’ Project (funded by ERC) at the Human Rights Centre, Ghent University (Belgium).]
In November 2020, a conflict broke out in the Tigray region of Ethiopia pitting the Ethiopian National Defence Forces, Eritrean Defence Forces, Fano (an irregular Amhara militia) and their allied forces on the one hand and the Tigrayan Forces on the other. A peace agreement reached in November 2022 allowed a cessation of hostilities. However, accountability efforts for the violations perpetrated are ongoing, including findings from three international investigative missions. The investigations of human rights violations in the conflict have been documented by the three missions as challenging. One of the primary reasons for this was refusal by the Ethiopian government to grant access to relevant sites and information. As a result, investigators significantly relied on open source investigations and particularly digital open source evidence. In this post, we dissect the findings from investigations conducted by the International Commission of Human Rights Experts on Ethiopia (ICHREE), the Joint Investigative Team of the Office of the High Commissioner for Human Rights and the Ethiopian Human Rights Commission (hereinafter the ‘JIT’) and joint investigations by Amnesty International and Human Rights Watch.
The standard of proof applied by ICHREE and JIT in their investigation reports was that of ‘reasonable grounds to believe’. The report of the joint investigations by Amnesty International and Human Rights Watch did not address the issue of the applied standard of proof altogether. In the three reports, there was considerable reliance on digital open source evidence as the main or corroborating evidence. Our post problematises use of this evidence and we question whether the investigators fairly relied on digital open source evidence and adequately applied standards of proof reflecting on fairness standards of impartiality, reliability and credibility in open source investigations.
The reliance on digital open source information in international investigations broadens not only the scope of the types of evidence which are gathered but also the methods of information gathering which are used. However, where the methods of analysing the digital open source evidence are not indicated, the process of authentication and verification of the evidence is omitted. As has been argued, ‘digital evidence is the result of scientific methodologies and tools which ensures that “its authenticity and integrity can be validated”’. The three reports relied on open source investigations and digital open source evidence as corroborating and direct evidence. Only one of the three reports, the JIT report, indicated the methods, tools and processes which they used to validate and authenticate the digital open source materials they used. Our primary argument, therefore, is that how investigators apply standards of proof and rely on digital open source evidence determines whether standards of fairness in an international human rights investigation are satisfied.
A Different Approach to Standards of Proof in the Tigray Conflict and Similar Contexts
The term ‘standard of proof’ has been described as ‘the degree of persuasion which [a] tribunal must feel before it decides that the fact in issue did happen’. In the common law legal system, four distinct standards of proof have developed and these have influenced international practice. These are the prima facie standard, the ‘preponderance of evidence’ standard, also known as the balance of probabilities, the ‘clear and convincing evidence’ standard and the ‘beyond reasonable doubt’ standard.
Generally, in international investigations the standard of proof to be applied will depend on the facts in issue, the nature of the proceedings and the rules guiding the fact-finder. In establishing facts in contexts such as the conflict in Tigray, the common international practice is to apply the ‘reasonable grounds to believe’ standard. This was the standard applied by the ICHREE and JIT missions in Ethiopia. Both teams highlight that they considered this standard to be satisfied when reliable information had been obtained which was ‘corroborated with other available material, upon which a reasonable and ordinarily prudent person would have reason to believe that an incident or pattern of conduct occurred’. Importantly, the JIT clarified that this standard was lower than the beyond reasonable doubt standard required in criminal trials and so their findings were not concerned with criminal responsibility of individuals involved in the Tigray conflict.
We have argued elsewhere that where there is lack of cooperation from key actors (like the government) in conflict situations such as has been the case in Ethiopia, fact-finders should not rigidly apply the commonly used ‘reasonable grounds to believe’ standard. Where fact-finders are deliberately inhibited from accessing sites, documents, witnesses and other important sources of evidence, we argue that this should be countered with a less stringent standard of proof that still allows collating of relevant data in a comprehensive manner. In practice, this would for example mean application of the lower prima facie standard where fact-finders would only be required to obtain evidence that is indicative of the contentions made. In this regard, digital open source information can be crucial in establishing facts, particularly where corroborating evidence is impossible to obtain because of lack of government cooperation.
Towards Fairness – Standards of Proof and Open Source Investigations
In practical terms, fairness benefits three key constituencies. The first is the party or parties alleged to have committed violations. The second are the victims who have an interest in seeing their violators held to account. The third is a general international interest in seeing the rule of law being adhered to. In view of this three-pronged interest, the standard of proof applied by fact-finding missions ought to fluctuate (as opposed to one pre-determined standard) depending on the facts in issue and the level of cooperation from key stakeholders in gathering of evidence. Essentially, authentication and verification are part of the standard of proof. As noted in our introduction, the joint investigations by Amnesty International and Human Rights Watch did not address the standard of proof question. This, in our view, is an omission that should not become the practice. Grappling with the issue of standard of proof is central to enhancing impartiality, reliability, and credibility of findings of human rights and other violations. This is especially the case because parties to a conflict can and have questioned the credibility of investigations based on the issue of standard of proof. The Government of Ethiopia, for example, contested some findings of the JIT on methodological grounds arguing that the standard of proof applied was unsatisfactory as the information relied upon was not independently corroborated (Annex V, para 31 of the JIT Report). We propose that standards of proof should be deliberately factored in the methodology of all investigative teams not only because it is fair especially to those alleged perpetrators but also because omitting the issue risks providing reasons for non-cooperation from important actors.
In addition, the methodology should factor in the fairness of the investigations and the findings made depending on the quality of the open source material. Both the JIT and the ICHREE have highlighted that they applied the principles of independence, impartiality, objectivity, transparency, and integrity to ensure procedural fairness when assessing information and collecting evidence. The ICHREE investigators did not, however, set out the methodology which they applied to ensure that these principles were followed. This is recommended in the Berkeley Protocol which provides a theoretical framework emphasising the importance of ensuring that open source investigations are reliable, in the sense of performing consistently, dependably or as expected. The Protocol also places an obligation on legal investigators to ensure fairness of proceedings.
While the potential of digital open source evidence in upscaling accountability efforts has become widely regarded, the lack of clarity around fairness standards still requires attention. Without such clarity in methodologies and tools to facilitate that materials are adequately analysed, examined and tested, there is the risk of under-relying or over-relying on digital open source evidence. In the Ethiopian situation, the Ethiopian government disputed findings on various grounds including insufficiency of evidence. For instance, they disagreed with the findings made by the JIT on the shelling of Mekelle and attacks on civilians and schools and hospitals on 28 November 2020. This response from the government can be attributed to lack of sufficient evidence from the JIT investigators given that they ‘did not make a specific legal finding regarding possible violations arising from the shelling’.
Investigators also indicated that they relied on satellite imagery, videos and photographs which provided direct evidence or corroborated violations in the region. The challenge posed by electricity, communication and telecommunications blackouts had a major impact on the availability of digital open source evidence. The JIT report reflects that despite targeted searches conducted by the investigators online and on social media platforms, only eleven videos were verified and relied upon. The question of whether there should be consideration of the quantities of materials relied upon in juxtaposition to the overall quality of the materials available arises. To realise fairness and reliability in open source investigations, we opine that a higher threshold in both the quality and quantity of digital open source material is required. Having access to more materials allows for investigators to sift through varying materials providing different source information and incident perspectives, while high quality materials are likely to provide succinct and relevant evidence on the violations. Efforts made by JIT investigators to verify and authenticate videos such as was done by analysing relevant metadata, timestamps, and matching landmarks visible in the footage with landmarks visible from satellite imagery reflects this. Fairness is therefore influenced by observing standards specific to the processing of digital open source materials at both the investigations stages and the analysis stages. Further, ensuring that the quality of the materials collected and the methods of collection are of high standards also contributes to fairness in open source investigations.
In this post we have interrogated whether the three investigative reports sufficiently articulated how standards of proof for fact-finding missions are satisfied where the method of investigation includes open source investigations. We argue that where open source investigations are concerned, additional safeguards such as providing details on how the information gathered is authenticated and verified ought to be considered. As investigative mandates in situations such as that in Tigray increasingly rely on open source investigations, questions of fairness in their methods should equally and adequately be addressed. To sum up, we urge that greater attention be paid to the question of standards of proof in the methodologies of human rights fact-finding. Stakeholders should appreciate the potential of applying appropriate standards of proof to mitigate against non-cooperation with investigators that is meant to defeat interests of justice. As we have shown, this may involve using digital open source information to fill evidentiary gaps resulting from such non-cooperation and still meet the set standard of proof.