Investigating with Digital Evidence: International Criminal Court's Approach

The International Criminal Court (ICC) is utilizing digital evidence to investigate Russian President Vladimir Putin, but the question arises: how can they determine if a video or photo is authentic or manipulated?

The invasion of Ukraine by Russia in February 2022 showcased the familiar elements of historical conflicts, where one nation invades another without significant provocation. However, this modern-day warfare is also characterized by the way ordinary Ukrainian citizens capture and share videos and photos depicting the mass murder of civilians, which constitutes a war crime under international law.

The importance of ICC's shift towards utilizing digital evidence

The ICC, located in the Hague, Netherlands, is striving to keep up with this digital trend. In March 2023, the court issued arrest warrants for President Putin and Maria Lvova-Belova, Russia's children's rights commissioner. They are accused of abducting and deporting Ukrainian children to Russia.

The specific evidence gathered by the ICC prosecutors to support these charges remains unclear. However, ICC prosecutor Karim Khan has mentioned the utilization of "advanced technological tools" in their ongoing investigation. This could encompass satellite imagery or cellphone videos recorded by witnesses.

As a scholar specializing in international human rights, I have closely studied the ICC's investigations into war crimes in Mali, West Africa. Over the past decade, I have observed how the court's use of digital evidence has advanced. The ongoing investigation in Ukraine by the ICC could solidify this shift towards employing digital evidence for war crime investigations. However, it also raises new challenges regarding the verification of the authenticity of the photos and videos presented.

The traditional approach to investigating war crimes relied heavily on witness testimonies and forensic analysis of physical evidence such as soil and bones. However, in 2013, during the ICC's investigation of Malian jihadist Ahmad Al Faqi Al Mahdi, who ordered the destruction of shrines and mosques in Timbuktu, a new approach emerged. Video evidence documenting the destruction of these culturally significant sites played a crucial role in the prosecution. The ICC, for the first time, heavily relied on visual digital evidence.

The Berkeley Protocol: Establishing Standards for Handling Digital Evidence

Since then, other international tribunals have recognized digital videos and images as legitimate evidence. Satellite imagery, mobile phone videos, and various other sources of digital data provide powerful supplements to eyewitness accounts of war crimes. Nonetheless, with the rise of sophisticated video editing and artificial intelligence tools, distinguishing between real and manipulated videos or images has become a significant challenge. If investigators cannot guarantee the authenticity of the evidence they obtain, it hampers their ability to proceed with their work.

In 2022, the Human Rights Center at the University of California Berkeley School of Law addressed this issue by releasing a guide on digital evidence aimed at international court investigators, lawyers, and judges. Known as the Berkeley Protocol, this guide establishes standards for legal relevance, security, and the handling of digital evidence. It includes guidance on protecting the identity of witnesses who provide digital evidence and emphasizes awareness of the psychological impact of viewing distressing content.

The process of a digital investigation involves several stages, as outlined in the Berkeley Protocol. Firstly, investigators must secure the evidence before it gets deleted or disappears. Often, they find themselves in a race against time to download and preserve digital content. Once the video or photo is in their possession, analysts undertake the authentication process. This complex procedure involves establishing the origin of the evidence and tracing its path from the time and location it was captured until the investigators acquired it. Analysts search for distinctive landmarks, such as unique buildings or trees, that can be identified in other images. Additionally, satellite imagery assists in determining the precise filming location and camera orientation. Facial recognition software and other tools may also be utilized.

Videos often contain clues about the time and place of an incident. Street signs or graffiti on lampposts can help narrow down the location and timeframe of the recorded event. The ICC is presently utilizing the Berkeley Protocol in its investigation of Ukraine. If and when prosecutors need to present digital evidence of Russian war crimes in court, its validity will likely be unquestionable.

The Ongoing ICC Investigation into Russian War Crimes in Ukraine

As of now, the arrest of Putin or Lvova-Belova seems unlikely, as they remain within the borders of Russia, which does not recognize the ICC's arrest warrants or prosecutions. Nevertheless, the ICC's investigation into Russian war crimes in Ukraine persists, relying on the substantial trail of digital evidence documented by journalists, ordinary citizens, and even the perpetrators themselves throughout the course of the war.

In March 2023, the Associated Press published images and videos showing Ukrainian children, potentially orphans, being loaded onto buses in Ukraine's Donetsk region, as well as images of Ukrainian children dining together in Russia. Two research agencies that previously advised the ICC have also conducted their own visual investigations, presenting digital evidence of Russian artillery attacks on a theater in Mariupol, where civilians sought shelter in March 2022.

Even the perpetrators themselves are posting evidence of their alleged crimes. Russian state media has reportedly showcased footage of Russian soldiers taking Ukrainian children from group homes into Russian-held territory.

International tribunals are adapting to this new era of digital documentation. While scenes in Ukraine may evoke memories of conflicts from the 20th century, the current war crimes investigation stands apart as a unique endeavor, shaped by the power of digital evidence.