Photos and videos are powerful evidentiary tools to prove a criminal act, including the intent and role of the accused, and to corroborate other evidence such as witness statements. Justice for international crimes requires evidence to hold perpetrators to account. However, digital technology has frequently been criticized for impeding the pursuit of justice by deleting vital evidence. Although it cannot be exclusively relied upon, digital technology has still become a vital mechanism in advancing the pursuit of international justice in certain situations.
Firstly, social media platforms’ moderation systems in particular have been criticized for failing to preserve evidence that document international crimes, thereby impeding accountability. Whilst there are no monolithic moderation policies, some platforms’ AI technology and human moderators have permanently deleted videos and photos documenting war crimes in countries like Syria and Ukraine on the basis that they violated platform rules on graphic content. In Ukraine alone, Youtube reportedly removed 9,000 channels related to the conflict. Even if the evidence is not permanently deleted, there is often a convoluted process to obtain even undeleted evidence after it is removed: requiring subpoenas and court orders regarding which international investigators often lack the power to deploy effectively. For example, the Gambia sought removed content from Facebook for its ICJ case against Myanmar for failing to prevent genocide. Secondly, uploading documents to some of these platforms, likeFacebook and Twitter, has undermined the chain of custody since the documents’ digital ID – the metadata of where and when the content was captured – is automatically stripped.
However, there have been significant positive developments that have enhanced accountability. For example, the Berkeley Protocol on Digital Open Source Investigations is a guide to the collection and use of open source information in investigating human rights violations. Furthermore, open source information and apps such as eyeWitness App have transformed the documentation of human rights and war crimes violations. Evidence from these platforms have been used in prosecution of international crimes, such as before the ICC to obtain an arrest warrant for militia leaders in Libya (Mahmoud Mustaga Busayf Al-Werfalli), before the ICC to secure the first guilty plea (case of Ahmad al-Faqi al-Mahdi), and by the UN Independent International Commission of Inquiry on Ukraine.
The eyeWitness App, developed by the International Bar Association, captures the metadata, time, date and place where the content was recorded to streamline the documentation process for evidence of international crimes and to meet the general admissibility criteria in criminal court for photo and video evidence. It thus protects the chain of custody from photographer to investigator to lawyer, contributes to the reliability, security and integrity of materials, and protects the rights of the defence. In Affaire Castro et Kitizo, the digital photo captured with the app was admitted and consequently assisted in the condemnation of two FDLR members for crimes against humanity and war crimes.
While digital technology should be championed, it should still not be relied on exclusively. Firstly, digital technology is only as useful as it is fit for purpose. For example, digital technology must have sufficiently strong cybersecurity protocols to safeguard evidence and must be able to deal with the large volume of information generated in the collection, preservation and authentication of evidence. It must also not be capable of being doctored or manipulated to spread misinformation. Secondly, the use of technology should not overshadow other forms of evidence. There remain barriers, with issues resulting from a lack of digital access, digital literacy and trust for certain individuals and in certain situations high risk in capturing and uploading the evidence. Thus, technology is not always a solution, and may, for some, remain an insurmountable obstacle to justice contributing to an inequality of arms, thereby harming the right to fair trial. It may define who has access to capture information and in turn allow evidence to fall through the cracks.
Therefore, digital technology is a useful tool to preserve and document war crimes. However, technology should not currently be relied on exclusively, but rather instead complement current methods used to achieve justice.
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