The increasing presence of digital technologies in the 21st century has been recognised as a new accountability mechanism within the international law community. International bodies are increasingly incorporating this type of evidence into fact-finding and prosecutions for crimes committed in conflict zones – for instance, in August 2017, the ICC issued an arrest warrant for Libyan military commander Mahmoud al-Werfalli, based on social media videos depicting him allegedly committing war crimes such as the murder of non-combatants.
In light of our Digital Evidence Verification project this summer, we conducted an interview with Dr Emma Irving, Assistant Professor of Public International Law at Grotius Centre for International Legal Studies at Leiden University. Dr Irving has been closely collaborating with EIJI on the project, and her current research is based around the scope of digital evidence in fact-finding and legal accountability. The interview provides an overview of digital evidence as an upcoming tool to prosecute, as well as some of the inherent problems or misconceptions surrounding this type of evidence.
Introduction and scope of digitally-derived evidence:
1. Would you categorise digital verification as an up-and-coming tool in the international law community, and briefly outline how you, personally, have found this tool to be useful in practice?
I would definitely describe digital verification – and online investigations more broadly – as up and coming tools in the international law community. A number of different international law actors are using these approaches now. For example, as far as States are concerned, The Gambia used screenshots from Facebook when putting forward arguments in favour of the granting of provisional measures against Myanmar in the ICJ case involving those two countries. Where UN human rights fact-finding bodies are concerned, the Fact Finding Mission on Myanmar and the Commission of Inquiry on the protests in the Occupied Palestinian Territory both employed online investigation techniques and digital verification tools when compiling their findings. And then, of course, there are criminal courts. The ICC has used these tools for some time in collecting and assessing evidence, most notably in the Al-Werfalli and Al-Mahdi cases. Domestic courts prosecuting international crimes under universal jurisdiction have turned to online sources and digital verification to build cases against individuals accused of committing war crimes – particularly in Syria. Whenever we see digital content of this type being used, we can reasonably expect that digital verification processes have taken place prior to that content being presented.
In terms of my personal experience, I have found these tools to be useful in supporting the work of advocacy groups. Whether these groups are seeking to build cases against certain individuals for potential prosecution in a criminal court, or whether they are using the tools for a broader advocacy strategy.
2. How can international lawyers use digital evidence collected by those outside of the legal community (e.g videos filmed by NGOs, social media uploads by civilians, etc.) to hold individuals, organisations or authorities accountable?
Digital material – whether open source or closed source** – can be helpful for organisations seeking to build a fuller picture of events in a given location or at a given time. Verified digital material, including videos, photos, satellite images, etc. can help to corroborate witness testimonies and generally bolster existing evidence. The material is particularly helpful for building a picture of what’s happening in places that are inaccessible to outsiders and where it is hard to document using more traditional documentation methods.
** Open source evidence concerns publicly accessible platforms, such as videos uploaded to social media, whereas closed source evidence is usually unavailable to the public.
Adapting to digital verification in the international law community:
3. In your opinion, what steps can be taken at an educational level and in the practising workplace to improve the handling of digital evidence in international law? How long would you expect before there is a noticeable difference in the handling/use of digital technology in the legal community?
To improve the handling of digital evidence in international law fora, consensus needs to emerge on what the best practices are. This is a process that is currently ongoing, as different organisations work to develop guidelines and protocols on the collection, preservation, and presentation of digital content as evidence. As with innovations of the past, some trial and error will likely be needed before the international community settles on an agreed set of best practices. It is difficult to anticipate all potential challenges and problems ahead of time, and patience will be needed as these things are figured out.
Digital evidence as an accountability mechanism:
4. In June 2019, the Sudanese government cut off internet access in an attempt to end mass protests. In the event of such censorship and exertion of executive power by authorities, how could the international community continue to ensure accountability when digital evidence is seemingly unavailable?
When governments cut internet access this is regrettable, as it limits what the international community can see. That being said, just because the internet is cut off does not mean that individuals on the ground do not continue to record what they see and make important content. The key is to create pathways for this content to be received by the appropriate actors – both within a country and outside it – when connectivity is restored.
Complications of using digital evidence as a tool to prosecute:
5. Could you elaborate on some of the possible dangers such as misuse or manipulation of digital evidence in international law? What legal requirements can be put in place to mitigate this weaponization of digital evidence?
There are too many potential problems to cover, so I will limit myself to just two. First, there is a danger that digital content will be given too much importance, at the expense of other kinds of evidence. Digital evidence, as with all types of evidence, should only ever be one part of a bigger evidentiary puzzle that is completed using a range of evidence. It should not eclipse evidence of other types, such as interviews and forensic work. Digital evidence will not be the solution to all the problems facing international accountability, but instead is a tool that has been added to the armoury of investigators.
Second, it is important to bear in mind that not all kinds of international crimes and human rights violations are visible through digital investigation methods. For example, while we may have a large number of execution videos being posted online, digital material depicting conflict-related sexual violence is much less common. When approaching digital evidence, therefore, it is important to keep an open mind as to whether the full range of unlawful behaviour is being addressed.
EIJI would like to extend a huge thank you to Dr Irving for not only her help on the Digital Evidence Verification Project but also for conducting this interview. We look forward to continuing our work with her throughout the rest of the academic year.
Guest Expert: Dr. Emma Irving
Author: Nikita Nandanwad
Editor: Kelsey Greeff
Editor in Chief: Zora Stanik