Symposium on Forensic and Counter-Forensic Approaches to International Law: Private Investigators, Public Accountability – Digital Forensics and the Politics of Evidence in International Crimes

[Julia Emtseva is assistant professor of law at HEC Paris]

I had never considered myself a law and technology person. Likewise, I never imagined that open-source investigations (OSINT) would touch me directly, beyond distant and abstract conflicts where technology was used to trace evidence of international crimes. That changed in September 2022, when my country, Kyrgyzstan, stood on the brink of full-scale armed conflict with its neighbor, Tajikistan. My first personal encounter with OSINT and digital forensics came then, and with it, the realization of how deeply such tools can change the narratives of something as horrible as wars. Fear for loved ones was compounded by the uncertainty of who had fired first, and who the aggressor truly was. Both states produced contradictory accounts of the outbreak of hostilities. And at that moment, a small group of young Kyrgyz activists calling themselves Bashtan Bashta (literally “start from the top,” but I guess it also alludes to the saying “a fish rots from the head”) turned to NASA satellite imagery to verify the timing of border shelling. Their analysis showed that almost all large-scale destruction occurred on Kyrgyz territory, which pointed to fire from the Tajik side.

This example is, of course, not the most sophisticated revelation of truth in times of war nor the most methodologically advanced exercise in digital forensics. Yet, what I witnessed was that their findings offered a narrative for people, including over 150,000 displaced, to hold onto – we are the ones attacked, and we will find justice. Whether that justice was ever realized is a story for another time. What mattered in that moment was the power of digital traces to contest official narratives, and the very fact that these findings became the subject of fierce disputes about their legitimacy and fabrication.

This attack on privately-collected evidence became the motivation for me to engage with OSINT and digital forensics a bit more closely. Through this engagement, and thanks to the work of those who have studied the question for years, it is evident that while these methods offer unprecedented opportunities, they also pose serious risks that demand scrutiny: the absence of oversight mechanisms, the potential for selective curation of evidence, and, importantly, the vulnerability to weaponization and politicization of sensitive data. In this short post, I critically examine these risks and argue that the current lack of accountability structures beyond voluntary codes of conduct for private actors creates legal and ethical fault lines. As a potential solution, I propose a shift in international legal thinking: rather than relying on formal legal personality, responsibility should be based on an actor’s practical engagement in justice processes.

The Politics of Evidence in International Conflicts

Since these armed attacks on the Kyrgyz-Tajik border, unfortunately, we have witnessed more brutal episodes of violence — most starkly, Israel’s genocidal war in Gaza and Russia’s aggression in Ukraine. Alongside these wars, we have also seen intensive efforts to document atrocity crimes, though under very different conditions. In Ukraine, where civil society groups and private investigators enjoy relatively unhindered access to most of the territory, the main challenges stem from over-documentationand there-traumatization of victims repeatedly asked to testify. In Gaza, by contrast, Israel’s restrictions on access mean that most available material comes from Gazans themselves and the few journalists able to enter, leaving investigators to grapple with the verification of largely digital evidence, which is often at risk of erasure by social media platforms or vulnerable to fabrication, particularly given the rise of AI.

Clearly, the presence of private investigators has transformed the investigative landscape. It has even made some evidence collection efforts an act of solidarity. Crucially, it has helped to democratize investigative practices by involving actors and geographies long excluded from traditional mechanisms of accountability. Thus, we should not forget that often, private investigations of atrocity crimes are as much political projects as legal ones. Cooperatives like Forensic Architecture explicitly position themselves against hegemonic narratives of conflict, challenging official accounts and exposing those in power. But in doing so, they also often inevitably provoke political pushback. Israel, Russia, and their public and private allies seek to discredit their work by questioning their legitimacy, methodology, and mandate (see e.g. here, here, and here). These attacks risk creating serious challenges for the evidentiary value of these investigations, particularly when the ultimate goal is to use the findings in courts or for crucial legal determinations, such as in the report of the UN Special Rapporteur on the Occupied Palestinian Territories. In short, if digital evidence is accepted or dismissed based on political convenience, its potential to challenge impunity is severely diminished.

Besides, the political vulnerability of evidence collected by private actors is compounded by its very potency. Geospatial and satellite documentation can also be co-opted by opposing sides. Additionally, there are risks in creating repositories of vulnerable civilian data without clear legal protections. Every mapped refugee movement, every reconstructed airstrike, every forensic archive could, in the wrong hands, become a tool of oppression. Given all these risks and challenges, we should approach questions of impartiality and epistemic bias in private investigation even more seriously.

Safeguarding Privately-Collected Evidence Beyond Codes of Conduct

Unlike states, private investigators generally lack institutional shields against such political attacks. Also unlike states, they usually operate without public oversight, which raises concerns about neutrality and the selective curation of evidence. This evidence, however meticulously gathered, remains exposed, and its capacity to challenge impunity is contingent upon its perceived legitimacy. Perceptions of legitimacy and its fragility stem from the fact that private organizations are not bound by international obligations to investigate or prosecute atrocity crimes. Yet, as reliance on their work grows, so does the pressure to adhere to international norms. A lot has been written about voluntary codes of conduct for OSINT, such as the Berkeley Protocol, PILPG’s Handbook on Civil Society Documentation, the Leiden Guidelines on the Use of Digitally Derived Evidence, and Global Legal Action Network’s Methodology on online OSINT, and many more, but the problem always remains: they are voluntary. And this “protocolization” of OSINT is actually not fully helping legitimize private efforts of atrocity crime documentation.

We must thus acknowledge what has already occurred in practice: private actors assume and perform roles analogous to states and other public bodies. Accordingly, they must also be prepared to accept corresponding responsibilities. As international lawyers, we know that there are no responsibilities without a regime. And as critical international lawyers, we do not shy away from experimenting and imagining the alternatives to the positive legal architecture. I thus propose the development of a unified responsibility regime that aligns legal obligations with the real-world capacities to perform certain functions and impacts of actors who shape evidentiary narratives in international justice. Of course, the presumption here is that private actors are also capable of doing harm, and the responsibility regime is also needed as a response to this capacity. And as we are talking about functions related to international crimes, such a responsibility framework would need to be based on international law. It would draw upon existing principles of international law, particularly the attribution mechanisms established in the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA).

In short, the foundation of this approach lies in recognizing that responsibility should follow the capacity to perform a function rather than formal legal status. To be clear, this proposition differs from the classical functionalist approach in international institutional law, as it generally has a blind spot in addressing questions of accountability and responsibility. In short, functionalism ties an actor’s powers, privileges, and immunities to the functions it performs, assuming that functional necessity justifies legal empowerment and insulation from external control. My proposed approach deliberately inverts this logic. If functions are the ground for authority, they must also be the ground for responsibility. So, rather than using “function” to shield actors, I propose to use it to anchor accountability. This shift makes responsibility follow the exercise of functions that are usually regarded as public (the obligations to investigate and prosecute), irrespective of the actor’s formal legal status.

This proposal does not emerge ex nihilo. The other functionalist reasoning  – found in the Article on Responsibility of States for Internationally Wrongful Acts (ARSIWA), which allows attribution through institutional links, effective control, or direction, can be used for a creative legal imagination beyond rigid formalism. Similarly, the Articles on the Responsibility of International Organizations (ARIO) extend this reasoning to international organizations and recognizes that non-state entities exercising public functions may assume duties analogous to those of states, based on their effective authority and operational capacity. This logic can be extended to private actors, who, due to the public functions they perform, bear duties, regardless of their international legal personality.  This logic that law attaches consequences to what actors do rather than what they are creates a doctrinal foothold for extending responsibility to private entities exercising public roles.

I propose adapting these concepts to construct a framework where private actors become subject to international legal responsibility when they:

1. exercise substantial control over evidence that may be used in international legal proceedings. This includes not only the collection of evidence but also its analysis, verification, and presentation in ways that influence legal or political outcomes.
2. maintain sustained relationships with states or international institutions in their evidence-related work. When private actors operate as de facto partners with judicial institutions or when their work is systematically relied upon by legal processes, these relationships create grounds for shared responsibility.
3. and, more generally, assume public functions related to international justice, regardless of their formal legal status. The key question is not whether an actor is formally designated as a public institution, but whether it performs functions that impact public interests in ways comparable to state or international organization activities.

The normative dimension could reinforce this trajectory. International law already demands that actors exercising power over transnational concerns abide by standards of due diligence, a principle traceable from the ICJ’s Corfu Channel case to modern environmental law and business and human rights standards. In parallel, the notion of common but differentiated responsibilities illustrates that obligations can and should be apportioned in proportion to power, capacity, and influence (Salomon, 193). To argue that private actors who deliberately or not assume functions central to global justice processes must accept differentiated obligations is therefore neither radical nor utopian: it is the natural consequence of international law’s commitment to aligning power with responsibility and preventing accountability vacuums.

The proactive acceptance of the responsibility by private actors is, however, key in my proposal. Such self-recognition has the potential to address the vulnerability of private evidence to political contestation. Of course, also state practice shows that publicly committing to adhere to certain rules and fulfill their obligations, and we know of many examples when, in the end, these are just rhetoric. But my hope and belief in the private organizations that commit to making the world a bit more just is also higher than in states. I realize that there are different motivations for an actor to step into the field of digital (and not only) investigation of international crimes – it can also be just pure business. But perhaps the majority of them are actually concerned about the situations they study. And thus, I believe that if private actors openly acknowledge their obligations, their work gains credibility and becomes less easily dismissed as partisan, flawed, or illegitimate. It could also mitigate the risks of misuse: evidence would be collected, curated, and managed in accordance with transparent standards that mirror state-level accountability (not that it is perfect – but it is at least existent). By explicitly committing to assume these responsibilities, private actors would contribute to a more accountable and resilient international justice ecosystem, where the integrity of evidence, the protection of victims, and the impartiality of proceedings are safeguarded even in politically contested environments.