THE (FUTURE) ROLE OF SOCIAL MEDIA CONTENT IN INTERNATIONAL CRIMINAL INVESTIGATIONS
Guest post by Ekaterina Fakirova
Influencer Law Clinic series
1/27/20223 min read
The investigation and prosecution of international crimes have taken on an entirely new dimension as a result of the rising effect of social media on the dynamics of international law. The increased usage of these platforms has resulted in the emergence of new sorts of evidence, specifically user-generated evidence, creating significant potential but also distinct legal issues. [1] As more cases continue to pile through the system, social media content will continuously expand in value for justice and accountability purposes.
The aforementioned examples offer us a true chance to observe the power of such videos as a type of social media content which can be used for establishing an evidentiary record. Furthermore, in its last two strategic plans, the OTP noted that technology has led to a rapidly changing environment in which witnesses, victims, and perpetrators have access to smartphones and the internet. The Court recognized the need for more workforce in order to conduct online investigations and hired cyber investigators. [4]
While the turn of the ICC to social media evidence (also referred to as open-source evidence) is significant, a complex relationship between this kind of evidence and international criminal justice might form. Article 69(4) Rome Statute which concerns the admissibility of evidence provides a three-part test: (i) relevance, (ii) probative value, and (iii) absence of prejudicial effect. [5] The second limb of the test is divided into two: a) reliability of the exhibit, and b) the extent to which the exhibit is likely to influence the determination of a particular issue. Reliability can be established in two ways: by authentication or “other indicia”. [6] The main issue of social media content is precisely reliability, since metadata—information about content as well as non-content details such as when, where, how, and by whom the information was collected—is often removed or tampered with. Moreover, when individuals, including perpetrators, document crimes they do not adhere to criminal investigations’ standards and practices. Lastly, the lack of uniform standards for collecting and analyzing open source material could make its acceptance as evidence in international criminal cases difficult.
A promising response to the aforementioned problems can be found in the Berkeley Protocol on Digital Open Source Investigations. The Berkeley Human Rights Center, together with the UN Office of the High Commissioner for Human Rights, launched the first universal guidelines for using public digital information as evidence in international court proceedings. [7] Although not legally binding, the common standards could contribute to expediting the commencement of criminal proceedings by harmonizing the processing and methodologies of open source evidence collection. To enhance the use of social media content and other digital open source information in investigations, the Protocol defines minimum requirements for identifying, collecting, archiving, validating, and evaluating it. Standards include digital content security procedures, social media information ethics, replication methodologies, chain of custody and investigative strategies. [8] Furthermore, having concrete guidance and steps at all stages of the investigation will aid organizations and people in gathering precise and trustworthy evidence that may be admissible in court.
Yet, the biggest challenge remains the susceptibility of digital content to manipulation and misrepresentation. The Protocol tackles the special issues that arise when validating information and assessing the authenticity and dependability of online accounts, many of which are anonymous or pseudonymous. The instruction might help attorneys and judges undertake more comprehensive verification of the material supplied and decide whether it can become part of the evidence record. [9]
The ICC has continuously been increasing its focus on open source and other electronic information. As of now, the OTP and its allies are gathering data on how various units and courts handle open source content and whether extra guidance and training is required.
The Court participated in the development of the international protocol, signaling its willingness for standardizing and professionalizing the field. In some cases, such as Syria, the utilization of open source digital evidence can be a beneficial answer to investigative stalemates. [10] The Berkeley Protocol is a helpful tool for assisting investigators and ensuring the admission of this sort of evidence in criminal trials for core crimes by responding to intrinsic problems of open source digital material, such as biases, authenticity, and reliability.
Sources:
[1] https://lieber.westpoint.edu/strengthening-atrocity-cases-digital-open-source-investigations/
[2] Prosecutor v. Ahmad Al Faqi Al Mahdi (Judgment) ICC-01/12-01/15-171 (27 September 2016)
[3] http://opiniojuris.org/2017/08/17/and-so-it-begins-social-media-evidence-in-an-icc-arrest-warrant/
[4] ICC, Office of the Prosecutor: Strategic plan 2016-2018
[5] Prosecutor v. Bemba, (Decision on the admission into evidence of items deferred in the Chamber’s “Decision on the Prosecution’s Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute”), ICC-01/05-01/08 (27 June 2013)
[6] https://harvardhrj.com/2019/04/open-source-evidence-and-the-international-criminal-court/
[7] https://www.ohchr.org/EN/NewsEvents/Pages/berkeley-protocol.aspx
[8] Berkeley Protocol on Digital Open Source Investigations
[10] https://harvardhrj.com/2019/04/open-source-evidence-and-the-international-criminal-court/