Can smartphones help ICC investigators?

By Benjamin Duerr*

Videos and photos have become valuable evidence in war crimes trials. Can smart phones help investigators at the International Criminal Court to strengthen their cases?

For Thomas Lubanga’s conviction, videos played a crucial role. Lubanga, a former rebel leader from the Democratic Republic of Congo, had been accused of conscripting and enlisting child soldiers. In 2012, he was convicted by the International Criminal Court (ICC) to 14 years in prison.

The prosecutors showed videos from the battlefield which were used by the judges to estimate the age of the children. They found that some of the kids filmed were younger than 15 years, and therefore, the footage finally determined Lubanga’s fate.

The case could become exemplary for other international trials: in war zones and conflicts around the world, smartphones have become a weapon for human rights defenders and a means for eyewitnesses to document abuses. For international courts, like the ICC, such material provides evidence about what happened on the ground.

Cyber evidence helps bridge gaps

“Digital evidence – like information on websites, emails, photos and videos – are increasingly important”, says the ICC’s head of investigations, Michel de Smedt. Usually there is a time gap of many years between the moment when the crimes are committed and the time the ICC investigators arrive. Cyber evidence can help to bridge this gap”, de Smedt says. “People on the ground are more and more able to capture what’s going on.”

Given the often greater reliability of these materials as compared to witness statements, the Office of the Prosecutor (OTP) wants to rely more on digital evidence for its cases. The ICC plans soon to test the “OTP internet portal”, a website where people will be invited to submit evidence. Users will have to answer several questions, which work as filters to determine whether their material is of relevance to the ICC. Some situations are out of reach of the Court due to the geographical or temporal limitations of its jurisdiction. Material concerning non-member states, for example, would most likely be filtered out. In cases where material could be of relevance, though, people will be able to submit their photos, videos or documents directly to the ICC.

The OTP has three cyber investigators at the moment but needs more, says de Smedt. It would like one expert per active investigation.

Challenges of digital evidence

According to de Smedt, there are three major challenges regarding cyber evidence. One is the massive volume of information, which creates issues of storage and processing. The OTP is currently working with experts to find a way to increase the searchability of evidence.

Another challenge is ensuring a tightly secure environment. “People who are uploading material might put themselves at risk, for example, because of governments surveying the internet”, says de Smedt.

The third major challenge is to ensure the evidence sent to investigators is authentic. At the ICC, almost everything is admissible as evidence. The judges determine, however, how much value they give to certain pieces of evidence. If the authenticity can’t be verified, the judges won’t give them much value.

Eyewitness Project

Therefore it’s important for eyewitnesses to capture verifiable evidence. The International Bar Association (IBA), together with experts including former international prosecutor Richard Goldstone, launched the Eyewitness Project earlier this year.

The initiative’s smartphone app “Eyewitness to Atrocities” collects geographic coordinates, date and time, device movement data and location of surrounding objects, such as cell towers and Wi-Fi networks. “This information is used to verify the date, time, and location of the footage”, explains Wendy Betts, the project’s director.

The app also embeds a unique identifying code, known as a hash value, in the footage, which ensures it has not been edited or altered. Finally, the user submits the footage from the app directly to a secure storage facility maintained by the Eyewitness Project. The footage can then be forwarded by the project’s experts to the ICC or other tribunals.

“The app is intended as a tool to empower human rights defenders, journalists and ordinary citizens to capture footage that can be used to hold individuals who commit international atrocity crimes accountable”, Betts told Legal Tribune Online. According to Google Play Store, the app has been downloaded between 1,000 and 5,000 times since it was launched in June.

Geneva Call

The smartphone app of the NGO “Geneva Call” takes a different approach and is intended to prevent crimes: the quiz-like application teaches rebel fighters not to commit war crimes. The organisation wants to raise awareness about humanitarian law. “Disseminating the law of war to warring parties, and in particular to armed groups, is essential to ensuring the protection of civilian populations during conflicts”, the organisation says on its website.