Harnessing Social Media as Evidence of Grave International Crimes
The International Criminal Court (ICC) issued an arrest warrant in August for Mahmoud Mustafa Busayf Al-Werfalli, a Libyan national, for alleged war crimes, including the execution of 33 prisoners in the vicinity of Benghazi between June 2016 and July 2017. What makes this warrant especially notable is that at least one of the executions, apparently captured on a cell phone, was obtained from social media.
As the first ICC arrest warrant to openly cite information derived from Facebook and Twitter’s platforms, the Al-Werfalli case underscores the growing importance of online open source investigations — investigations that comb publicly accessible resources on the internet, including social media — to advance international justice.
While journalists often collect and analyze open source information, its use by international prosecutors to investigate genocide, crimes against humanity and war crimes is relatively new. And as potential evidence of such crimes increasingly appears online, minimum standards need to be established to ensure that such information is captured and preserved in a manner that is court-admissible.
To advance this process, in early October, the Human Rights Center at the University of California, Berkeley School of Law brought 18 international prosecutors and investigators, forensic digital experts, and activists to the Bellagio Center in Italy to discuss challenges to and opportunities for the effective collection, analysis, and preservation of open source information for legal accountability. The Rockefeller Foundation made the workshop possible, with additional support provided by Open Society Foundations and Humanity United.
Among the participants were representatives from the International Criminal Court, the Commission for International Justice and Accountability, the Geneva Academy, the Association for the Study of War Crimes, WITNESS, Amnesty International, the Syrian Archive, and other organizations.
The group recommended that the Human Rights Center develop guidelines to increase the quality and consistency of the use of online open source information for evidence collection and verification. The audience for the guidelines will include first responders, NGOs, national war crimes teams, activists and others who are not operating under a specific set of standard operating procedures. Content will include a set of principles aimed at maximizing the potential value of open source information for court purposes. The draft guidelines will be disseminated to a wide circle of advisors for input and finalized at a workshop in 2018.
Participants emphasized the need to
· systematically preserve and manage information gleaned from open sources;
· identify procedures for organizing video archives and other datasets so as to facilitate their use by international criminal investigators; and
· foster a community of practice for the purposes of peer review, as well as the development of ethical standards and the sharing of new investigatory methods and procedures.
This process will build on earlier investigatory efforts to increase the diversity and quality of evidence of serious international crimes. Several decades ago, for example, DNA analysis was a cutting-edge practice that had to gain acceptance by the scientific and legal community as an appropriate form of forensic evidence. Other examples include the standardization of the forensic documentation of torture, which resulted in the Istanbul Protocol, and of extrajudicial killings, which resulted in the Minnesota Protocol, for evidentiary purposes.
Given that activists often risk their lives to collect evidence of war crimes and human rights abuses and post that information online, it is critical that those who use such information for journalistic and legal purposes know how to advance its potential value as evidence — maximizing the potential that war criminals and human rights abusers will be held to account.
