The aggression of Ukraine by Russia since February 24, 2022 illustrates once again the importance that new technologies have taken on in the investigation of international crimes (war crimes, crimes against humanity, crimes of genocide and the crime of aggression). In addition to satellite images, the use of which has been renewed thanks to a gain in precision, are now added images obtained by drones and above all photos and videos posted on social networks.
Individuals, whether civilian or military, no longer hesitate to film or photograph what they witness to then report the event on social networks. All this information – called open source information – is therefore available to investigators. Thus, for example, after having examined and authenticated “46 photos and videos of the strike made public on social networks, as well as 143 photos and videos shared privately with those who carried out the research”, Amnesty International has released an investigative report into the shelling of a civilian building housing children on March 16, 2022 in Mariupol.
To what extent does this incredible amount of information available on digital platforms improve the proof of international crimes and therefore the prosecution of their perpetrators?
An incredible amount of information
Let us first specify that the massive presence of this information in free access is no longer a new phenomenon since the mechanisms put in place within the United Nations to investigate these crimes, whether in Syria (Commission of Inquiry and Mechanism international, independent, impartial) in Myanmar Independent Mechanism for Myanmar or in Iraq (UNITAD) already have recourse to it as well as the jurisdictions at the national or international level.
Previously, the international investigator was accustomed to seeking evidence on the territory of the State in which the crimes had taken place or, failing that, when this was not possible, to collecting the testimony of refugees from that State. He can now, in addition to this traditional evidence, receive information transmitted directly by civil society or collect it without going to social networks.
This new survey model allows, on the one hand, a greater participation of individuals in surveys, and on the other hand, to compensate for the lack of access to the territory of the State when the latter closes its borders as this is the case in Syria or when security conditions do not allow a team of investigators to be sent on site. Nevertheless, it raises many questions.
Video posted to social media Saturday and verified by The Post showed at least nine people including one child laying in the street of a residential area in Bucha, north of Kyiv, after Russian forces retreated from the area. They appear to be dead. https://t.co/OHNHj5Un5W
— The Washington Post (@washingtonpost) April 2, 2022
The investigator is faced with new difficulties: managing to analyze so much data without being drowned in information; distinguish true information from false information; succeed in presenting this type of evidence in the context of the trial, etc.
Faced with this new evidence, investigative strategies vary greatly depending on the mandate received by the investigators. The two independent investigative mechanisms set up within the United Nations (IIIM: International, Impartial and Independent Mechanism for Syria and IIMM: Independent Mechanism for Myanmar) have received a mandate from “collect, gather, preserve and analyze evidence of violations of international humanitarian law, violations of human rights law and abuses of this law” and on the other hand of “compile files with a view to facilitating and expediting fair, independent criminal proceedings that comply with the standards of international law before national, regional or international courts or tribunals”.
To this end, they carry out a structural-type survey in which they seek to bring together all of this evidence and analyze it. This type of investigation is a real challenge for any investigator in the era of new technologies. The whole difficulty lies in their ability to move from collecting information to collecting evidence by identifying relevant evidence within the information gathered. In 2020, Catherine Marchi-Uhel, head of the MIII, already explained that the storage capacity of her mechanism was equivalent “at 1.7 petabytes, which is equivalent to a tower ’10 times higher than the Eiffel Tower'”. To manage such a large amount of information, these investigators are again using new technologies by developing software capable of cross-checking by targeting common elements such as faces, stamps, headers, etc.
For their part, the Office of the Prosecutor of the International Criminal Court and the national criminal courts which prosecute the alleged perpetrators of these crimes under their universal jurisdiction are overcoming this pitfall by focusing on the evidence necessary to demonstrate the international crime making the object of their investigation. This second strategy leads them to target their research on social networks in order to retain only the information relevant to their investigation.
The risk of fake news
Nevertheless, whatever the type of investigation carried out, investigators must adapt their methodology in order to be able to authenticate the evidence and verify its reliability, and to identify the many fake news. These are not necessarily discounted, as they may be relevant to the investigation, for example showing propaganda carried out by the state. But they must still be identified as such so as not to bias the investigation.
War in Ukraine: browse the fake news and images that have been circulating since the start of the Russian offensive https://t.co/TwtcTucybR
— Decoders (@decoders) October 11, 2022
Inspired by the Berkeley Protocol on the Use of Digital Open Sources in Investigations adopted in 2020 with the assistance of the University of Berkeley, the investigators of the International Criminal Court and the United Nations implement a rigorous methodology to achieve it. In addition, they ensure that information from social networks is then stored in compliance with the chain of evidence, again relying on technology using the hash function process. Only the commissions of inquiry set up within the United Nations serve as an exception due to a lack of resources in terms of time and budget. Their methodology is therefore necessarily less rigorous. This is why the evidence they collect will not be repeated as such, but will again be the subject of meticulous examination. However, this could change with the recent establishment of a technology unit within the Office of the High Commissioner for Human Rights, responsible for helping them collect, analyze and preserve this evidence.
Even if this new evidence resulting from new technologies seems in this context sufficiently solid to be presented in the context of trials thanks to the adoption of rigorous methodologies, they still carry certain fears. Indeed, the intervention of individuals through these new forms makes it necessary to question their status, and more particularly their security, since the protection granted to the witness is reserved for judicial proceedings. However, their protection is made necessary by the visibility of their participation on social networks upstream of the surveys.
What role for digital platforms?
Finally, the role of the private sector is now unavoidable, itself raising questions about either the form of the partnerships to create the technologies necessary for the investigation, or the action of the platforms holding a lot of evidence which can escape investigators through moderation.
While some of them seem to be cooperating within the framework of legal proceedings, they refuse to communicate the necessary information to the commissions of inquiry set up within the United Nations, considering that they have no obligation with regard to these mechanisms ad hoc jurisdictions. However, these fulfill an essential role by first establishing the facts constituting international crimes in order to then recommend the establishment of judicial investigations. Their warning role is therefore made more difficult by this lack of cooperation. Similarly, when these platforms agree to cooperate, they cannot provide information that has been moderated by themselves or deleted by its author under the national or regional obligations to which they must comply.
If this new evidence still raises certain questions, its probative value in demonstrating the guilt of perpetrators of international crimes is undeniable. It was on the basis of several duly authenticated videos that the ICC Prosecutor obtained his first guilty plea in the Al Madhi case, named after a former member of Ansar Dine, a Tuareg Salafist jihadist group active during the war in Mali having participated in the ransacking of historical and religious monuments in Timbuktu (Mali) in 2012. And if they are not always enough, this evidence can in any case consolidate all the elements to convince the judge of the guilt of the person continued.
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How social media is used to investigate international crimes
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