On Monday, Karim A.A. Khan QC, prosecutor of the International Criminal Court (ICC) in The Hague, announced that the Office of the Prosecutor (OTP) was opening an investigation into alleged war crimes and crimes against humanity being committed in Ukraine. “I have already tasked my team to explore all evidence preservation opportunities,” he said in a statement, inviting anyone with relevant information to email it to his office.
The information necessary to the investigation—including photographs, videos, satellite images, and audio files of the conflict—can be emailed because it is largely composed of crowdsourced mobile data. On Instagram, Ukrainians post stories containing videos of bombed-out buildings and smoke rising from residential neighborhoods. On Telegram, a Kharkiv news channel shares images of murdered civilians in the center of the city, bleeding out onto the street, of gutted apartment buildings. On Twitter, videos of bombing victims in Kyiv circulate.
This circulation reflects the nature of contemporary warfare: We have seen these kinds of images make the rounds before, from Syria, Yemen, Libya, Afghanistan, Palestine, and elsewhere. On Tuesday, the UN International Court of Justice, also located in The Hague, followed Khan’s lead, announcing that next week it too would hold public hearings on allegations of genocide committed by the Russian Federation against Ukraine.
But the international community has not yet settled on a standardized approach that might ensure the preservation of this digital evidence. There is no widely used method to guarantee that when the perpetrators are tried—and they will be tried, in absentia or otherwise—the abundant documentation of their crimes will meet the evidentiary requirements of their courts. While many courts, including the ICC, have previously admitted user-generated evidence, there is an unprecedented volume of potentially relevant data coming out of Ukraine. As Rebecca Hamilton and Lindsay Freeman write for Just Security, “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).” Securing convictions will require unimpeachable, verifiable digital evidence. That means we need to start protecting these files now.
Proof alone is not enough to combat lies. It is never enough. Evidence, digital or analog, can always be maligned by those who would prefer it didn’t exist. Just ask the prosecutors at the District Court of The Hague who are pursuing the case against the Russian-backed separatists responsible for downing a civilian jetliner in 2014. They issued their closing arguments in December 2021, seven years after the incident occurred. When Russia invaded Ukraine in 2014, evidence also circulated online, and social media played a critical role in documenting the occupation. Not all of those links were preserved, which means that important pieces of evidence have likely been lost.
Cases pertaining to the 2014 Russian invasion in Ukraine are still working their way through international courts; the atrocities committed over the last week represent a continuation and escalation of an ongoing war. The difference is that now the international community is better equipped to ensure that artifacts documenting the obliteration of the Ukrainian people and nation are archived and protected against manipulation until the day when trials begin—and long after they end.
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The public, real-time circulation of this data is critical to protecting Ukrainians on the ground and spreading international awareness. According to a statement from the Ukrainian Ministry of Defense, Russian forces are confiscating civilian cell phones in towns under their control, presumably to limit what occupied Ukrainians can document and also to seize their telephone lines. The geospatial intelligence firm ShadowBreak International has collected the radio transmissions of advancing Russian soldiers who are relying upon civilian communications networks, in addition to military channels. This means that Russian communications are being archived, translated, and recorded by observers around the world. Soon, they will also be made available to journalists and prosecutors investigating war crimes.
Meanwhile, part of the Russian military strategy consists of disseminating falsified footage and photographs of the conflict, which circulate alongside actual evidence. Russian lawmakers are drafting a bill that would make the circulation of “fake” information about the war in Ukraine punishable by up to 15 years in prison. This includes information regarding how many Russian soldiers have been killed in Ukraine and the nature of the actions they were sent there to commit.
Whenever the trials begin, we can anticipate that defense attorneys for the Russian Federation will repeat these tactics, attempting to dismiss evidence that they do not like as manipulated and fabricated. The rapid implementation of robust methods of evidence preservation is one of the best ways we can ensure that their claims will be countered both in the present and in perpetuity.
Over the past several years, think tanks and universities have opened digital investigative units that help collect, archive, and analyze data from geopolitical conflicts. Already, human rights organizations such as Amnesty International are working to compile digital evidence of suspected war crimes committed in Ukraine. These units often produce forensic reconstructions of war crimes around the world, creating virtual models of crime scenes in order to trace the arc of a missile, the trajectory of a bullet, or the path of a tank. Forensic Architecture, an investigative firm based in London, created a virtual platform analyzing the 2014 Battle of Ilovaisk in Eastern Ukraine from open source evidence, which was submitted as evidence to the European Court of Human Rights. They deployed machine learning and data mining to capture Russian military actions; Russian authorities predictably dismissed their findings as fabrications.
The trouble is that forensic reconstructions, while moving, often claim to speak for themselves. They are persuasive media objects that can play an important role in shaping the public's understanding of an event, but they often fall short of evidentiary requirements. That is why it is not sufficient to simply collect, archive, and restage digital crime scenes. Organizations must do so in a standardized and controlled manner if they want to ensure that the information they are amassing can be used to hold responsible individuals to account. A crime scene must be preserved first, reconstructed second.
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This is not a new problem, but it is a newly urgent one. We already have a working framework for ensuring that evidence is properly handled—now we just need to implement it far and wide. In 2017, investigators and prosecutors from the ICC met with human rights lawyers and forensic experts to begin creating a shared protocol for how evidence gathered from social media should be treated; as a result, the OTP produced an internal manual of investigative procedures. And in December 2020, the UN Human Rights Office and the UC Berkeley Human Rights Center released the Berkeley Protocol on Digital Open Source Investigations, the most comprehensive framework for digital evidence collection and preservation for use in international tribunals.
The Berkeley Protocol makes clear that legally viable evidence must also be preserved in an unaltered form, with its authenticity, availability, persistence, renderability, and chain of custody maintained. Each artifact should be given a unique identification number; bit sequences should be intact, processible, and retrievable; there should be chronological documentation of the origin, collection, and transfer of every item. An evidentiary copy—a copy that investigators do not forensically analyze or manipulate in any way—should be backed up and stored. Any forensic investigations of metadata or source code should be undertaken on reproductions of the evidentiary copy.
The Berkeley Protocol is a new set of best practices designed “to assist open source investigators to conduct their work in accordance with a professional methodology that is broadly consistent with legal requirements and ethical norms.” It is a set of general guidelines that “stays at a high level, requiring organizations to adapt the procedures to fit the specific contexts in which they work,” as Just Security’s Hamilton and Freeman explain.
It is up to the courts and organizations and individuals who want to contribute to the evidence-gathering process to see that it is put into action. One place to start might be to set up a “digital evidence clearinghouse” where open source files can be uploaded for processing and storage. Individuals and organizations collecting footage and photographs of alleged war crimes should do everything they can to document the origin and context of the materials they find.
Perpetrators of crimes against humanity have always sought to cover up their actions. Over the weekend, Russian bombs hit the headquarters of the Security Service of Ukraine in the town of Chernihiv, destroying the archive of WWII materials held inside. Many of these materials had been digitized by researchers working with the materials, but not all. The documents attested to crimes committed by both German and Soviet authorities. Now that they have been burned, the risk is that their documentation is forever lost.
The literary scholar Marc Nichanian argues that genocide is not just the destruction of a people or nation, but also “the very destruction of fact.” It is the burning and impugning of evidence, the dissemination of lies. It is the murderous impulse to destroy a country and then make it prove the circumstances of its own destruction. The internet enables these cover-up operations, but it also exposes them. Ensuring that digital evidence is properly collected and stored this time around is a powerful way to show that the past is not the present and that perpetrators will be held to account.
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