In the summer of 2017, judges at the International Criminal Court (ICC) took a remarkable step. For the first time, they issued an arrest warrant based primarily on video footage that a user posted to Facebook. It was a harbinger of the 21st Century forms of evidence that will soon flow into international courtrooms.
The future of international evidence collection is no longer primarily in the hands of investigators employed by a Hague-based court. Ordinary users of cell phones can now influence what crimes and which perpetrators will (and will not) be prosecuted. For many, this is a cause for celebration. But it also raises some unsettling concerns.
The 2017 arrest warrant charged Libyan national Mahmoud Mustafa Busayf Al-Werfalli with the war crime of murder. The case added momentum to the work of Alexa Koenig and others at the Human Rights Center at University of California-Berkeley School of Law, as they convene discussions on how new forms of evidence, facilitated by technological developments, can be harnessed to strengthen international criminal investigations. And it validated investments in this area by the International Bar Association through its EyeWitness to Atrocities app, and by the organization WITNESS, which seeks to protect and defend against human rights abuses with video and other technology and has produced an excellent field guide for video-as-evidence.
Such efforts to strengthen the hand of those working on international criminal investigations is understandable. The recent dismissal of the charges against two leaders accused of post-election violence in Cote D’Ivoire marked just the latest in a series of high-profile setbacks the ICC prosecutor has suffered in bringing alleged war criminals to trial. The failures have spurred concerns about the future of international criminal justice.
The kind of user-generated evidence relied on in the Al-Werfalli warrant has obvious appeal to prosecutors who have struggled to gain access to conflict-affected areas, and whose cases have been beset by claims of witness intimidation and manipulation. If local cell phone users start documenting war crimes and crimes against humanity in real time, it reduces the problem of external investigators only gaining access to the crime scene months or years later, by which time evidence may have been lost or destroyed. If properly secured, such user-generated evidence can record testimony that cannot be changed or recanted.
Less obvious, but perhaps most valuable of all, if local users in conflict-affected areas start gathering evidence that the ICC then relies on, it could “democratize” international criminal investigations, helping chip away at the narrative of international justice as a neo-colonial endeavor.
Positive Effects Aren’t a Given
But, as with all technology-enabled developments, it is not inevitable that user-generated evidence will have such positive effects. As I discuss in the article User-Generated Evidence, forthcoming in the Columbia Journal of Transnational Law, the impact of these technological developments on international criminal justice will be determined by the choices that people make. And the cast of characters who can and will play a role in the future of user-generated evidence is larger than one might initially think. It extends beyond the investigators, court-appointed lawyers, and judges traditionally involved in operating the system of international criminal justice, drawing in new non-profit groups, private lawyers, technologists, and internet providers.
A cursory view of user-generated evidence sees it as merely the product of a new kind of technology that will force courts to address authentication concerns, much as they did when photography and traditional video footage first began to enter courtrooms. Scratch the surface, however, and it reflects a more fundamental shift underway in international criminal investigations: private actors playing an increasingly influential role.
Greater involvement by private individuals and organizations exacerbates at least three risks already inherent in evidence collection.
First, and most pressing, is the security threat to private actors who gather evidence, including victims and witnesses. Evidence collection is a risky business, and increasing the amount of user-generated evidence in a case shifts some of this risk away from court-appointed investigators who have institutional support and an evacuation plan, to people without such protections.
Second, the fair-trial rights of defendants need to be guarded from the outset by everyone involved in cases relying on user-generated evidence, not left as a concern to be raised by defense lawyers after a case has been brought to trial. Third, all of those involved, but especially prosecutors and judges, need to guard against cognitive biases that are likely to be prevalent in the face of visually compelling material gathered by people who may be unconcerned with representativeness.
Will Abuses Out of View Be Neglected?
Finally, a related, but more pernicious, issue lurks — one that international prosecutors should reflect on as increasing amounts of user-generated evidence is sent their way. Al-Werfalli’s alleged crimes involved assassinations committed in a public square. They are crimes that clearly merit the attention of an international prosecutor. But what of the sexual assaults taking place outside public view, or the torture committed inside government detention facilities?
Could it be the case that actions susceptible to capture on cell phone are more likely to be those of the foot soldier carrying out a crime, than of the politician involved in masterminding it? In short, will courts begin to neglect — either deliberately because it’s easier, or simply because of a prohibitive workload — the types of crimes, perpetrators, and victims that are less likely to be captured by user-generated evidence?
International prosecutors are, of course, aware of such dynamics. Yet, as discussed in a recent workshop, in a period when international criminal justice is under attack and when running a successful trial is a sure retort to charges of inefficacy, there are undeniable incentives to prioritize the prosecution of crimes with readily available user-generated evidence.
Prosecutors will quickly point out that user-generated evidence is a supplement to, not a replacement for, traditional investigations. Nonetheless, in a world of finite resources, the investigation of a set of allegations that are already backed by video evidence will be all too easy to favor over cases requiring costly in-person investigation from the outset.
As many of us celebrate the advent of user-generated evidence for the potential benefits it offers to an international criminal justice system under assault, we must simultaneously remain vigilant against the danger of any technology-driven breakthrough: A development that holds the promise of upending existing hierarchies of power can, instead, end up entrenching them.
IMAGE: The International Criminal Court marked the opening of its judicial year on Jan. 18,, 2019, with a Special Session at the seat of the Court in The Hague, Netherlands. The event gathered senior judges representing national jurisdictions as well as regional or international courts, and members of the diplomatic corps, civil society and international organisations.