Examining the use of Open Source Evidence in the International Criminal Trials

Perhaps one of the key highlights of the 20th century was the increased awareness of international crimes, birth of the International Criminal Court (ICC) and the rising effect of social media on the international discourse. The upsurge of applications like Facebook and Twitter highlighted the importance of open source evidence in international criminal trials. Conceptually, open-source information means publicly accessible data — digital or analogue – that requires no permission or legalities to obtain and includes “photographs, video and audio recordings, e-mails, blogs, and social media.” Early use of this evidence in international criminal trials can be traced to the 1946 Nuremburg trials which partly relied on documentary evidence like photographs and film footage to hold the perpetrators of the Nazi Germany’s crimes accountable. Subsequent international criminal trials conducted through Ad hoc Criminal Tribunals like the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), Extraordinary Chambers in the Courts of Cambodia (ECCC) et cetra coincided with the advent of the internet, camera-fitted mobile phones, social media and drone technology. As such, these institutions also relied on some form of open-source evidence in the course of executing their mandates. 

Currently, the ICC an active user of open-source evidence. The fairly recent admission of an online news report by the Court  in one case is instructive. The ICC has further developed an e-Court Protocol which inter alia provides guidance how “Image and Data file formats” shall be managed. Whereas this is designed for harmonizing the format and storage of digital evidence, it nonetheless demonstrates the ICC’s acknowledgment of the role and anticipation of open-source evidence while conducting its business. This is quite revealing because traditionally, the ICC’s legal texts and jurisprudence placed witness testimony at the core of trial proceedings. However, this proved problematic and exposed some of the loopholes in the Prosecutorial Strategy used by the Office of the Prosecutor (OTP). The failure by the Chamber in Ngudjolo  case to establish the accused’s leadership over the Lendu combatants – a key ingredient in establishing command responsibility —  based on the evidence on record, raised questions on the quality of ICC prosecutions. In part,  some actors attribute these prosecutorial setbacks to a lack of quality evidence linking perpetrators to crimes. The OTP has since recognised the potential of open source/digital evidence and has taken steps to enhance its capacity to gather and scrutinise such evidence. This notwithstanding, open-source evidence has been deployed in international criminal trials at the ICC and other internationalized criminal tribunals to support human rights accountability processes as can be demonstrated by several cases.

In the Bemba case, the Chamber while admitting a British Broadcasting Corporation (BBC) news article; titled “DR Congo: Congolese Liberation Front unit commander said arrested” obtained from an internet search noted that the piece “may, inter alia, be relevant to determine the accused’s ability to impose disciplinary measures and his power to prevent and repress the commission of crimes” as well as in the establishment “of the accused’s mens rea.” The Chamber then admitted the news article with the “limited purpose that the information contained therein may serve to corroborate other pieces of evidence.” This decision is an acknowledgment that whereas open-source evidence may not be conclusive singly, it can provide good clues which point to the criminal intents of an accused person which when corroborated, can support human rights accountability during international trials.

The Pre-Trial Chamber 1 of the ICC in the Al-Werfalli case, reasonably believed that the accused committed international crimes after analysing among others, “recordings of witness interviews and summaries of witness interviews; video material and transcripts of video material; internal orders, and social media posts by the Media Centre of the Al-Saiqa Brigade.” What is note-worthy in this case, according to some scholars was enormous quantity of open source evidence presented including “satellite images from Google Earth, videos from YouTube, and audio clips found on the internet.” Similarly, the Chamber considered “the hundreds of documentary evidence items” presented by the Prosecution in the Al Mahdi case which included satellite images, archive photographs, audio and video recordings to corroborate the accused’s guilty plea before convicting him.  The two cases are huge milestones because the fact that a Warrant of Arrest could be issued in the former and  a conviction secured in the latter, partly based on open-source evidence demonstrates the utility of this evidence in global criminal trials. The significance of open-source evidence in international criminal trials was also highlighted in the Lubanga case where the prosecution relied on several video excerpts to establish the involvement of children in the activities of the UPC/FPLC, a rebel outfit in the Democratic Republic of Congo. The videos showed political speeches, assemblies, rallies and interviews undertaken by the accused’s group. The Chamber was convinced that videos, though imprecise, were “credible, consistent and reliable” evidence of the use of child soldiers in armed rebellion. 

As earlier on noted, the use of open-source evidence pre-dates the ICC. Internationalized courts have had occasions to utilise this evidence. To prove the accused’s portfolio as directeur de cabinet and ‘acting’ Minister of Defence with “influence and significance” as well as effective control over the Rwandan Military, the ICTR in Prosecutor v. Bagosora, et al partly relied on a transcribed video footage to reach that conclusion. Likewise, in Prosecutor v. Karemera the ICTR accepted video evidence and a radio broadcast transcript as proof of the accused’s attendance of a rally. An appeal which described the documentary evidence as “discernibly fake” was dismissed by the Appeals Chamber. 

From the cited cases above, it is deductible that to a large extent, open-source evidence has played a key role in international criminal trials. Unlike the traditional witness testimonies which can be limited to what a person saw and can recollect, open-source content like videos, pictures and satellite images can document and offer a wider perspective to rights violations than what the human eye can capture. With advance in technology, such evidence can be stored in various formats and given a longer shelf-life unlike mortals. 

Nonetheless, despite its many strengths, open source information is also subject to serious limitations which may affect its admissibility during international criminal trials. One of the main challenges is its inability to stand on its own.  Open source evidence requires triangulation with a host of other pieces of evidence for it to be relied upon. When contextualised, supported, and explained by expert witnesses, it can be very compelling. From the ICTR and ICC cases cited above, it’s incomprehensible that the two bodies would have reached their decisions without external evidence to connect the dots.  As such, the requirement of corroboration, though well-intended, might discount the role of this evidence since it cannot singly prove a matter. 

Additionally, in its years of existence, a recurring issue in most ICC cases has been Witness Interference which entails acts of changing a potential witness testimony so as to evade justice. Witnesses may be threatened, tortured, killed, bribed etc. Whereas this challenge is prevalent for witness testimony, it is not far-fetched for creators of open-source evidence too. Hiatt argues that reliance on open source evidence may increase the risks facing eyewitnesses and people who gather the information first-hand. Besides, the requirement for corroboration may entail the documenters to physically appear and explain their content. Thus, by just mitigating as opposed to removing this inherent risk that comes with witness testimony, the use of open-source evidence can be considered challenging with little tangible value to human rights accountability processes.

Furthermore, in the era of ‘Fake News,’ the chances of obtaining and possibly using misinformation presented online is relatively high as open-source evidence can be altered or degraded. Moreover, Nikita and Koenig suggest that it can be compiled “in such a way that it seems determinative of the case” and that editing can have “substantial effects” on one’s apparent guilt. Misinformation goes to the heart of any criminal trial and the ICC’s cautious approach, enshrined in the three-part admissibility test cited in the Bemba case might lead to rejection of most open-source evidence submitted before it. Besides, in the developing world, digital penetration is still relatively low. Accordingly, most lawyers and certainly victims are not tech-savvy and may struggle to distinguish accurate content from misinformation. This also means that the generation of open-source evidence by those in direct contact with the atrocities may be low for example, in African countries where ironically, most ICC cases have originated from. The digital divide may render the use open source evidence challenging. 

In conclusion, the place of open-source evidence in international criminal trials is getting established. The inherent weaknesses of witness testimony justify the need to include alternative forms of evidence to international criminal trials like open-source evidence. Issues like witness tampering and fallibility of eyewitnesses can be mitigated, through use of this evidence. As technology advances, the international community needs to strengthen the infrastructure for detecting misinformation and build a stronger jurisprudence to cement the role of open-source evidence in international criminal trials.

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