One Image, One Thousand Words? Discussing the Outer Limits of Resorting to Visual Digital Evidence in Cases Involving International Crimes

• Publication year: 2023
• Citation: Vol. 51 No. 2

One Image, One Thousand Words? Discussing the Outer Limits of Resorting to Visual Digital Evidence in Cases Involving International Crimes

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Solon Solomon^*

Table of Contents

I. Introduction........................................................................................374

II. International Crimes and the Use of Visual Digital Evidence..........................................................................378

III. The Psychological Impact of Visual Digital Evidence as a Ground for Limiting its Use in International Criminal Proceedings.................................................................382

IV. Limiting the Use of Visual Digital Evidence on Factual Grounds.........................................................................385

V. Limiting Resort to Visual Digital Evidence on Structural Grounds Affecting the Fairness of the Proceedings..........388

VI. Visual Digital Evidence in International Law: Quo Vadis?....................................................................................393

VII. Conclusion.......................................................................................394

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Abstract

Visual digital evidence plays a cardinal role in international law, particularly when it comes to international criminal law and the documentation of international crimes. This Article argues that resorting to visual digital evidence in cases involving international crimes should take place with cognizance of the prejudicial bias that such pieces of evidence can exert. In that sense, echoing the general impact of digital evidence on international criminal law, as stressed in the Berkeley Protocol on Digital Open Source Investigations as well as the Leiden Guidelines on the Use of Digitally Derived Evidence, this Article discusses why international courts as well as quasi-judicial bodies should make limited use of visual digital evidence in two major instances. The first comprises cases where visual digital evidence comes to add nothing to the identification of a specific individual as the culprit of an international crime. The second refers to instances where such evidence offers nothing or little to the question around the gravity of the international crime in question.

I. Introduction

The last few years have seen quasi-judicial bodies and even non-governmental organizations (NGOs) resorting to videos, photographs, and the use of computer graphics in order to substantiate international crimes.¹ These organizations draw on a practice that international criminal courts and tribunals have endorsed since the Nuremberg trials.² Although no settled definition for digital evidence exists, experts on digital evidence largely agree that it comprises "any data stored or transmitted using a computer that support [or] refute

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a theory of how an offense occurred or that address critical elements of the offense such as intent or alibi" or data that is stored or transmitted in a digital or binary form.³

Resort to digital evidence has been so broad that its use has sparked two large projects on both sides of the Atlantic in the last few years. In the United States in 2022, the Berkeley Protocol on Digital Open Source Investigations was published as a synergy between the U.N. High Commissioner of Human Rights and the Human Rights Center at the University of California, Berkeley.⁴ In Europe, in the same year, the Leiden Guidelines on the Use of Digitally Derived Evidence in International Criminal Courts and Tribunals were published.⁵ The Berkeley Protocol's stated aim is to "identify international standards for conducting online research into alleged violations of international human rights law and international humanitarian and criminal law."⁶ The Leiden Guidelines are meant "to assist practitioners by comprehensively outlining the essential elements which should be considered before submitting [digitally derived evidence] to an international criminal court or tribunal."⁷ In other words, neither of these documents relate to the question of how the international adjudicator, judge, member of a quasi-judicial Committee of Inquiry, or other panel must assess the relevance of digitally derived evidence after such evidence has been admitted. Moreover, whereas the Berkeley Protocol acknowledges the psychological impact such evidence can exert for the investigator of international crimes,⁸ any reference to such psychological impact is missing from the Leiden Guidelines. By focusing on the main phase of the proceedings and discussing how visual digital evidence can psychologically impact people called to make legal judgments by creating a bias in international proceedings that should not be condoned, this Article touches upon an issue left unaddressed by the aforementioned initiatives, yet should be included in future endeavors.

Scholars have already brought forth reservations to the unfettered use of visual digital methods as evidence and have pointed out to a number of possible problems this use may beget. These problems range from the authenticity

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and source of this evidence and the need for such evidence to be verified,⁹ especially once open-source evidence is involved,¹⁰ to the storage of digital evidence and its ability to ultimately be retrieved from thousands of digital information pieces produced online every day. Scholars have equally underlined how bias is inherent in the decision-making processes involving evidence in general¹¹ and visual digital evidence in particular.¹² Nevertheless, nothing has been written so far on the bias that decision-makers like international adjudicators face once exposed to visual digital evidence.

This Article does not argue that such bias should lead altogether to the non-admission of visual digital evidence, but rather that judicial and quasi-judicial bodies should be cautious in admitting such evidence and do so only in cases where such reliance on this evidence is necessary for the question of whether an international crime has been committed, or for the elucidation of the identity of the culprit. For example, visual digital evidence has been essential in proving that the crime of genocide has occurred in the case of Myanmar and the Rohingya minority¹³ or that war crimes were committed in Srebrenica.¹⁴ Equally, in Krstic, a case involving the genocide of Bosnian Muslims in Srebrenica,¹⁵ the ICTY concluded that the defendant knew,

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despite his denial, of the arrival in the region of his command of a certain sabotage unit, due to the existence of a video which showed Krstic walking past soldiers with uniforms of this unit.¹⁶ Yet, with the emphasis placed so far by scholars and courts on the admissibility of visual digital evidence,¹⁷ no rules have been solidified so far on the probative value and relevance of such evidence following its admission in the course of an international trial.¹⁸ This makes international adjudicators more vulnerable to an uneven influence that an admitted video can exert as compared to witness testimony due to the mixture of sound and image that such a video entails. This does not mean that reliance on visual digital evidence should not take place at all. Rather, the argument is that we must rethink under which circumstances reliance on such evidence should take place. For example, visual digital evidence may be utterly important for proving factual issues. On the other hand, this evidence becomes less important once international courts and quasi-judicial bodies are called to assess legal questions such as the legality of the resort to force in the first place by the state or non-state actors accused of war crimes.

Whereas this Article focuses its analysis inside the international criminal law framework, the relevant arguments and conclusions can extend beyond international criminal bodies, into other international courts, or even quasi-judicial bodies like Commissions of Inquiry. For example, it must be noted that the Commission of Inquiry on Eritrea relied on satellite images in order to confirm the use of certain detention facilities in the country,¹⁹ and the same is true for the Commission of Inquiry on Syria in a bid to attest laws of war violations and possible crimes committed during the conflict in the country.²⁰

The analysis will proceed as follows: the next Part will discuss how visual digital evidence has been used so far in international criminal law. The Article will then discuss how images can impact our emotional world, before it further

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delineates factual and legal grounds which support the caveated reliance on visual digital evidence in cases involving international crimes.

II. International Crimes and the Use of Visual Digital Evidence

The end of the previous century and the first years of the current saw an increase in the creation of international criminal courts and tribunals. The International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court all constitute examples of the proliferation of international judicial bodies assigned to try international crimes.²¹ Yet, with scholars expressing skepticism about whether international criminal justice could deliver its aims,²² domestic judges started to increasingly become involved in proceedings involving international crimes.

For example, domestic judges have served on courts established by the international community. The Special Court for Sierra Leone,²³ the Extraordinary Chambers in the Courts of Cambodia,²⁴ the Special Tribunal for Lebanon,²⁵ and the Kosovo Specialist Chambers²⁶ are all examples of courts of hybrid form where national judges sat alongside their international peers. Yet, more recently, the war in Syria has underlined the role domestic courts can also play to the distribution of international criminal justice. Along these lines, domestic judges have become seized of international crimes in the course of proceedings...