Reconsidering the Digitalization of International Criminal Justice

The rapid evolution of digital technology during the past two decades has significantly influenced the processes of international criminal justice and accountability. Initially, the rise of technology was seen as a means to harmonize and enhance international criminal law research and analysis through, for example, the creation of an online friendly-user database with a comprehensive depository of legal tools. Shortly thereafter, pro-tech momentum seeped into criminal investigations and data collection operations. Tech-proponents portrayed technology as the cure for all challenges faced by international tribunals, such as accessing crime scenes in conflict zones and protecting the safety of victims, witnesses, and court staff.

As a result, hundreds of tech-based projects and initiatives were developed, seeking to support crime documentation and preservation of evidence. These projects include the development of mobile applications to report and document human rights violations and the innovation of online and offline software to vacuum up opensource data created by on-the-ground activists. Ultimately, many passionate and ambitious activists have become reliant on tech-based projects as the way to generate evidence and identify war criminals, and NGOs leaders and other privileged internet users have become the primary actors shaping the justice models that they believe are appropriate for marginalized groups.

While the use of technology has undoubtedly advanced (and continues to advance) the international criminal justice field, the excessive optimism about technology – and eagerness to incorporate technology throughout the justice process, whether it is needed or not – has led many activists to ignore the numerous downsides, particularly the negative impact of the use of advanced technology and heavy reliance on internet-in-justice projects, such as remote documentation software and mobile documentation applications, on a victim-centered approach to justice.

This article will outline some of the costs of relying on advanced technology and internet communications in international criminal justice processes, and then suggest a way forward. First, tech-based projects risk distancing justice and accountability mechanisms from affected people, leaving them with only a digital sense of redress. Second, they may jeopardize the safety and security of affected groups, ordinary citizens, and activists who often lack access to secured internet connection and sophisticated technologies. Third, tech-based projects can further marginalize particular affected groups, especially those who lack internet connectivity. These projects can also lead to selective evidence gathering which neglects or deprioritizes certain crimes, thus creating hierarchical victimhood in which only victims of these specific crimes participate in shaping the justice discussion.

Digital Justice and Victim-Centered Approach 

International justice mechanisms have attempted to prioritize a victim-centered approach to justice; however, this approach may conflict with the digital technology-based “solutions” on which these mechanisms increasingly rely. The victim-centered approach can be best understood as a way to enable and empower victims and affected groups to shape and create the justice model that is suitable for their needs in order to achieve sustainable peace and ensure harmonic society. According to the victim-centered approach, service providers must “[place] the needs and priorities of victims/survivors of violence at the forefront of any response.” This necessitates, inter alia, that victims and affected groups have the option to effectively engage in justice processes. Studies have shown that victims prioritize and value meaningful participation in justice proceedings and the feeling of being heard. In fact, victims form their opinions about the legitimacy and credibility of the processes based on their level of engagement. This research shows that victims are likely to question proceedings in which they are not engaged, irrespective of their outcomes, while they tend to accept the result of justice proceedings in which they meaningfully participate.

There is no doubt that tech-tools, such as communication software and applications, can increase the quantity of affected individuals who participate in justice processes. For example, a platform such as Zoom can facilitate the participation of large numbers of victims in a virtual justice conversation. It also can make it easier for prosecutors to save time and cost of trips to record testimonies. However, increasing the number of participants does not necessarily translate to improved access to meaningful justice for all affected parties.

For one thing, it is questionable whether tech-based connection tools can facilitate meaningful communication on the sensitive topics implicated by international criminal justice proceedings with affected groups. Zoom meetings or Whatsapp video calls generally lack the relational part of in-person interactions, which is essential to build trust and credibility. Indeed, there is a consensus among psychologists that online communication cannot replace in-person interactions: “[w]hile Zoom and Skype are preferable to more detached platforms such as instant messaging, neither of them give users what full-bodied person-to-person engagement does.” In addition, during the current pandemic, legal scholars have raised serious concerns to whether virtual hearings can offer due process protections for litigants and serve the needs of justice. This emphasizes the importance of retaining in-person interactions as the primary means for engaging affected groups in justice processes.

Protecting the Security of Affected Groups

The victim-centered approach includes prioritizing the safety and security of affected groups. There are tradeoffs inherent in the use of technology in this sphere as well. While the use of technology may minimize physical threats facing investigators in crime scenes and conflict zones, it shifts the security burden to affected groups, activists, and local communities. This security burden includes not only physical risks undertaken to collect evidence (which victims and community members may bear in the place of international investigators, who increasingly receive information remotely which was collected by others) but the risk of hacking, inadvertent disclosure of private information, and the costs associated with securing information systems against such risks.

Information systems connected to the internet are at particular risk for security breaches, surveillance, and theft of private information. Cybersecurity experts recommend the use of a Virtual Private Network (VPN) to circumvent surveillance and secure an internet connection. However, VPNs often require a subscription and not every internet user has access to them – unlike international investigators who have the resources and tools to secure their communications.

These security concerns are not theoretical, nor merely a general concern for all internet users. In fact, activists and affected groups in conflict zones are frequently subject to both state and non-state actors surveillance. This risk is not confined to internet users who are publicly involved in online activism, but extends to those who privately engage in documenting atrocities and report human rights violations. There are many instances of governments identifying, locating, and later arresting activists as a result of  their online activism. Non-government armed groups have also developed mechanisms to surveil and monitor internet connection and activities. For example, during its control of Al Raqqa, Syria, ISIS prohibited the use of Wi-Fi in homes, limiting internet connectivity to selected internet cafes where internet traffic was closely scrutinized by ISIS. In fact, ISIS tracked, identified, located, and brutally slaughtered two Syrian activists in Turkey as a result of their online engagement in reporting ISIS atrocities.

Even when a secured internet connection is available, there are other types of risks that jeopardize the safety of affected groups when they are required to engage with international justice processes via online means. Even if communications are secured against hacking or unauthorized surveillance, internet users face the risk of misuse of information voluntarily provided or their own uninformed online practices. Safe and secured use of the internet is complex and especially in cases which involve sensitive information, it requires advanced awareness around cybersecurity issues, which ordinary internet users lack. For example, one of the most recommended practices for safe use of the internet is the installation of multi-factor authentication. Yet even in the relatively well-connected and tech-savvy United States, studies show that few internet users can correctly identify and use a multi-factor authentication process. In relatively less connected contexts – including many places where international justice mechanisms might seek to use digital methods to overcome logistical challenges – these gaps in security literacy may be magnified. These inherent threats jeopardize the lives of affected groups and sources of information. In addition, these risks may counterintuitively reduce the participation of affected groups by undercutting trust, thus rendering victims or witnesses hesitant to cooperate with investigators via tech-tools.

Technology Can Increase Marginalization of Affected Groups

Budgets for international justice mechanisms are not infinite, and it is worth pointing out the obvious: the prioritization of funding for technological solutions comes at the cost of other possible investment. Indeed, some technology-assisted projects, such as remote video-based interviewing or automated processes for accepting evidence, are particularly appealing to policymakers because of their perceived cost savings. While in-person interviews might take days to arrange and complete, these automated processes could theoretically gather evidence from many more victims and witnesses in a fraction of the time and much more cheaply.

However, this approach further marginalizes certain communities, creating a victimhood hierarchy that prioritizes the perspectives of victims with access to advanced technology. For instance, in conflict zones such as Yemen and Syria, more than two thirds of the population do not have access to internet. Internet access among these populations follows patterns of privilege and economic stability, with the relatively wealthier able to afford access. Reliance on internet to document crimes can therefore be expected to reproduce patterns of privilege and inequity in these communities, rather than advancing neutral justice.

Moreover, refugees and displaced people who forcibly flee their homes because of armed conflicts have even more limited access to technology. According to the United Nations High Commissioner for Refugees (UNHCR) “refugees are 50 per cent less likely than the general population to have an internet-enabled phone, and 29 per cent of refugee households have no phone at all.” These populations are likely to be impacted by – and have evidence relevant to – international justice mechanisms, yet are disproportionately likely to be excluded from certain internet- and technology-assisted justice projects.

In addition, the overreliance on certain technological evidence collection methods such as “crowd-sourcing” user-generated evidence effectively excludes or deprioritizes the victims of crimes that are committed in secrecy, such as torture and sexual and gender-based violence. The risk of marginalizing these groups is not limited to the harm that victims themselves experience if they are excluded from justice processes. This skewing of evidence collection can also negatively affect investigation efforts by neglecting valuable sources of information about war crimes and acts of hostilities, namely displaced people, refugees, and victims of crimes committed in secrecy.

The Way Forward

It is evident that the use of technologies has a critical role to advance justice and accountability across the world. However, when resorting to technological solutions, service providers must understand their specific strengths, limitations, and downsides. While certain technologies can offer protection to international investigators and perceived cost savings, the use of the very same technology in certain scenarios can distance affected groups from justice processes. Likewise, certain technological methods of investigation or prosecution can heighten the risks faced by on-the-ground activists, and further marginalize disadvantaged populations or victims of secret crimes.

These risks, if not mitigated, will result in a justice model that is shaped by “privileged victims” and heads of NGOs, rather than by a complete or representative set of affected individuals. Consequently, donors, activists, and investigators must avoid overreliance on tech-based tools as the exclusive means of communication with affected groups. This requires leaving the option of in-person communication open to affected groups – and specifically investing in these in-person or low-tech options. These actors must also educate affected groups about the risks associated with the use of the internet and offer cybersecurity trainings to their staff and clients. Finally, when shaping justice mechanisms, donors, NGOs, and activists must prioritize the inclusion of affected groups who lack internet connectivity and the victims of crimes that occur in secrecy. Otherwise, justice efforts will remain incomplete and may increasingly reify the social divisions and insecurity they are intended to help heal.

Image: People attend a live broadcast of the trial of former Ivorian president Laurent Gbagbo in front of the International Criminal Court (ICC) in The Hague, on January 28, 2016 in Abidjan. The high-profile trial of former Ivorian president Laurent Gbagbo opened today five years after post-election violence wracked his nation, with supporters and foes aiming to shed light on the turmoil that left 3,000 dead. / AFP PHOTO / SIA KAMBOU 

 

About the Author(s)

Deyaa Alrwishdi

Deyaa Alrwishdi is an adjunct professor of law and the director of the Syrian Initiative to Combat Sexual and Gender-Based Violence at American University Washington College of Law (AUWCL). Follow him on Twitter @deyaa_alrwishdi.