(Ця стаття також доступна українською мовою тут.)

The Prosecutor of the International Criminal Court (ICC), Karim A.A. Khan QC, announced Monday that he is opening an investigation into the situation in Ukraine. This will present a test case for the ICC’s ability to absorb and analyze massive amounts of user-generated evidence – evidence recorded on a smartphone by an ordinary citizen – in a complicated information environment.

According to Monday’s statement, the investigation will build on the Office of the Prosecutor’s (OTP) preliminary examination in Ukraine, which has been investigating potential international crimes that have taken place there since November 2013. Crucially, though, the investigation will also encompass “any new alleged crimes … committed by any party to the conflict on any part of the territory of Ukraine.”

This means the OTP will be investigating alleged war crimes unfolding in real time, in a country where over 70 percent of the population has Internet access. As even the most casual Twitter scroller can attest, the volume of potential war crimes documentation that cell phone users have uploaded to social media since Russia invaded Ukraine last week is already overwhelming. What’s more, the spread of misinformation and disinformation – both unwittingly and intentionally, including through Russia’s use of AI-generated social media trolls – further complicates the veracity challenges of digital documentation.

The Court made its first foray into user-generated evidence just five years ago. At that time, the Court relied on cell phone videos posted to Facebook in support of its arrest warrant for Libyan commander Mahmoud Al-Werfalli. Al-Werfalli was killed in Libya last year, so his case never went to trial. User-generated evidence is part of cases progressing at the Court in relation to the situation in Myanmar/Bangladesh, and in the Central African Republic. Still, an eventual case from Ukraine would be one of the first, and certainly the most major, example of reliance on user-generated evidence by the OTP at trial, where the Court requires proof beyond a reasonable doubt (significantly higher standard than the “reasonable grounds to believe” standard required for the issuance of an arrest warrant).

Access to user-generated evidence is, in many respects, a boon for ICC prosecutors, who have often faced difficulties gaining access to conflict-affected areas. Evidence that previously may have decayed or been destroyed by perpetrators before investigators could seize it, can now be digitally preserved. Still, user-generated evidence also comes with significant risks – for both those doing the documentation and those hoping to use the documentation. These risks must be managed, with the help of best practices guidance, to ensure the security of users, the authentication of evidence, and the representativeness of the crime base presented to the Court.

Best Practices at the ICC

The OTP has been strengthening its digital evidence protocols since it first relied on user-generated evidence in 2017. Shortly after the release of the Al-Werfalli arrest warrant, several members of the OTP convened a group of international experts at a workshop organized by UC Berkeley’s Human Rights Center. The participants discussed key challenges for international courts and tribunals in dealing with social media and other user-generated content. It was at this workshop that initial principles and relevant definitions began to emerge. In the ensuing months, an internal project within the OTP led to the development of a manual on online intelligence and investigations, with working groups focused on the use of online information for decision-making purposes such as operations, investigation planning and witness protection; the use of online information as evidence in investigations, including collection and preservation procedures and examining discovery and verification practices; specialized internet activity requiring digital forensic expertise; cross-cutting security issues; and skills requirements, competency levels, and training for all OTP staff. With regular meetings over the course of a year, the OTP developed and implemented a thorough set of best practices, policies, and guidelines for handling online information.

Best Practices for Users

Many Ukrainians currently filming the Russian invasion on their phones are benefiting from concerted outreach and education by the growing number of organizations now dedicated to improving the ability of ordinary citizens to document human rights abuses.

Several years ago, the International Bar Association developed the eyeWitness app to help users ensure the documentation they gather meets evidentiary standards. The human rights group WITNESS has long been doing outreach based on its Video as Evidence field guide, which contains extensive guidance on the security concerns that users should consider before filming.

Subsequently, the Human Rights Center at UC Berkeley and the UN Office of Human Rights co-led wide-ranging consultations with technologists, lawyers, and investigators working in different fields of practice, to bring consistency to this emerging field of investigatory work. (One of the authors of this article works for UC Berkeley’s Human Rights Center and was involved in this process.)

The purpose of these consultations was to develop international investigations guidance, like the Istanbul Protocol or the Minnesota Protocol, but focused on digital open source information. Crucially, there was close coordination with the OTP throughout this process so that guidance provided to human rights groups could support the OTP’s accountability efforts.

The result was the Berkeley Protocol on Digital Open Source Investigations, published in December 2020. The Protocol provides principles and minimum standards for digital investigations and evidence collection intended to maximize user-generated evidence’s potential employment in the widest range of jurisdictions.

While this general guidance provides a helpful starting point, it stays at a high-level, requiring organizations to adapt the procedures to fit the specific contexts in which they work. Importantly, the Protocol stresses the value of pre-investigative measures such as performing a digital risk assessment, conducting a digital landscape assessment, and developing an online investigation plan. The Protocol also emphasizes the need for investigators to document their work if they plan to use it in future trials.

While official translations into other UN languages have yet to be released, many Ukrainian NGOs have already taken the initiative to translate portions of the Berkeley Protocol into Ukrainian and Russian. The Human Rights Center has also provided training on the Protocol to Ukrainian prosecutors, investigations, and civil society groups.

User-Generated Evidence Collection in Ukraine

Key principles in both the OTP Manual and Berkeley Protocol are data minimization and preservation, which can sometimes conflict. On one hand, investigators are encouraged to collect only online material that is relevant, necessary, and proportional to the purpose for which they are collecting. Avoiding over-collection is essential in situations like Ukraine, with the speed and volume at which user-generated content is produced. At the same time, however, the internet is dynamic and valuable content can be removed. Therefore, it is equally important that investigators act quickly to properly preserve user-generated evidence that is relevant to their cases and at risk of removal.

Russia’s recent aggression against Ukraine will put users seeking to document evidence, and the OTP seeking to use that evidence, to the test. Best practices around the collection and use of user-generated evidence have developed rapidly in recent years. Still, the OTP will face immense challenges in the Ukraine context due to the sheer volume of information, and the need to thoroughly verify user-generated content.

New technologies such as artificial intelligence and machine learning can assist with some of these hurdles, but many areas remain that require human input and assessment. Given the OTP’s limited resources, the Ukraine investigation team is likely to be small and unable to handle the intake of user-generated evidence without the support of external partners from the technology sector and civil society.

Hopefully, the groundwork that has been laid will put Ukrainian civil society and domestic and international NGOs in a strong position to obtain relevant user-generated evidence that, with support, the OTP will be able to preserve, organize, and verify to ensure its admissibility in future legal proceedings.

IMAGE: A civilian participant in a Kyiv Territorial Defence unit looks at his smartphone while waiting to fend off a mock attack during training on a Saturday in a forest on January 22, 2022 in Kyiv, Ukraine (Sean Gallup/Getty Images)