These privacy concerns are all the more important when we consider the identities and private information of vulnerable victim populations. This comment will deal with specific considerations that affect the evidence of rape or sexual assault survivors. Issues around privacy affect every victim population. However, I chose to focus on this particularly sensitive population because I believe it highlights the gravity of the potential consequences that may result from a violation of privacy rights. The Court is effectively one of few systems in the international community which can prosecute mass rape and sexual violence. As such, it should consider the potential consequences of storing evidence regarding this particular crime as the survivors of sexual violence may face specific harms which may not apply to any other victim/survivor population. Though I do not claim that this is the only vulnerable victim population or that the privacy concerns highlighted throughout this comment only affect sexual violence survivors, the reputational harms impacting this population should factor heavily into the Court’s considerations when establishing a digital repository.

In Section II, I look at the specialized risks surrounding the publication of the identity of a rape or sexual assault survivor. These risks include social, psychological, and financial risks—how the social stigma placed on survivors can be detrimental to their overall well-being once they are identified as survivors. In breaking down these concerns, I touch on how it affects both the individual survivors as well as their family and the general community structure. Section III provides an overview of the current victim protection protocol in place at the ICC. In Sections IV and V, I address potential challenges to the current protocol in light of digital evidence and suggest some ways in which the Court could address these concerns.

II. Risks Associated with Identification as a Survivor

A. Socio-Psychological

Sexual violence can have a severely negative effect on the psychological and social well-being of a survivor. With limited resources, it is often difficult for humanitarian organizations to provide comprehensive post-rape psychological care.4 Even after receiving counseling, the World Health Organization reports that up to 50% of women retain stress symptoms after surviving sexual violence.5 A sexual attack can result in an inability to perform every-day tasks, nightmares, flashbacks, and suicidal ideation.6 There may also be long-term psychological effects including depression, anxiety, psychotic episodes, and PTSD.7 These issues can be chronic and debilitating. A Human Rights Watch report showed that survivors of gang rapes during Kenya’s 2007–2008 post-election violence reported chronic depression, anxiety, and unexplained pain that interfered with their ability to work, care for their children, and be full members of their communities.8

One of the most commonly experienced responses to rape is the stigmatization of the survivor.9 One survivor reported:

I was collecting firewood for my family when three armed men on camels came […] raped me one after the other. When I arrived home, I told my family what happened. They threw me out of our home and I had to build my own hut away from them. I was engaged to a man and […] he did not want to marry me anymore and broke off the engagement because he said that I was now disgraced and spoilt.10

There is a belief that the survivor is “disgraced, dishonored, or otherwise ruined by the violation.”11 This can result in the survivor, already traumatized and lacking institutional support, being “forced out of their families, isolated from their communities, and left to deal with their trauma alone.”12 Another report cites the percentage of female survivors accompanied by their husbands to a hospital after an assault as 1%, because most have been abandoned upon their family learning about their attack.13 In conflict settings, where the protection of a community can be especially necessary, abandonment by a social group could expose the survivor to subsequent attacks.

B. Financial

The economic lives of survivors may also be fundamentally altered after their attack is known. In societies where marriage can be a crucial part of a woman’s financial security, divorce or abandonment can result in poverty.14 Additionally, the psychological impacts can hinder a survivor’s ability to return to their previous life or job which would similarly harm their economic stability.15 Women may become too afraid, of re-victimization or social stigma, to leave their homes to work, thereby contributing to the poverty levels of both the family and community.16

C. Family

The breakdown of family structures in communities can also be seen following mass rape. One victim recounts:

[M]y husband insults me every day, calling me the wife of the militiamen who raped me […] [and] when I ask my husband to give me some food he replies to me, why don’t you go and ask for food to your husband in the forest?17

Domestic abuse beyond the initial assault has become increasingly common, a by-product of the breakdown of culturally accepted marriage norms coupled with the stigma placed on a survivor’s family.18 This may result in communal trauma. In interviews with Mozambican women, survivors reported that “when one woman was raped, the rape was felt by the whole community.”19

The effects of rape and sexual assault may also extend past the individual to their children. Children “born of wartime rape constitute a vulnerable group, who are often labelled by communities as the ‘bad blood of political, ethnic, or religious enemies’” and are subsequently stigmatized at birth and lack “access to community resources, family protection and education or livelihood activities.”20 In Rwanda, there have been reports of abuse, neglect, and infanticide of babies born of sexual violence during the genocide.21 A community refusal to recognize the child as legitimate may also result in administrative challenges in birth registration or citizenship rights.22 This lack of formal citizenship can have economic impacts if the child is denied basic rights such as education and can impact the child’s ability to receive asylum.23 The children, as stated in a UNIFEM report, “become the symbol of the trauma the nation as a whole went through, and society prefers not to acknowledge their needs.”24

III. Current ICC Practices

The current witness protection protocol of the ICC, while robust and generally highly rated by past witnesses, may not be enough to fully protect survivors and witnesses in the digital space. The ICC states that:

The court has a number of protective measures that can be granted to witnesses, victims who appear before the Court, and other persons at risk on account of testimony given by a witness. The court’s protection system is based on best practices which are aimed at concealing the witness’s interaction with the Court from their community and from the public in general.25

Article 68 of the Rome Statute provides that the Court “shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.”26 In doing so, the Statute stipulates that the nature of the crime, in particular, where the crime involves sexual or gender violence, will be regarded.27 Article 43(6) stipulates the creation of a Victims and Witnesses Unit (VWU) which will provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims […] , and others who are at risk on account of testimony given.28 The VWU has indicated that protecting the identities of witnesses and victims through anonymization is key to successful protection.29 Article 54(3)(f) states that the Prosecutor may “take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information [or] the protection of any person.” 30, 31 Finally, Article 57 provides that where necessary, the pre-trial chamber will provide for the protection and privacy of victims and witnesses.”32

A. Pre-Trial Witness Protocol

The VWU first engages with witnesses after they have been identified, have agreed to testify, and have been accepted by the relevant Chamber.33 The VWU then provides a Witness Information Form which serves to provide operation and logistical support information and document any particularized issues in order to assist in preparing a specific witness plan.34 Protective measures in the witness’s home countries are aimed at a reduction in threat exposure or providing responses to an identified threat.35 These may include an assisted move, though witness relocation is “only used as a last resort, due to the immense burden put on witnesses and families.”36 Concealing the interaction between the witness and the Court from the public is often the primary goal of the VWU, as identification can carry significant risks to potential witnesses.37 The VWU may help in creating a cover story for the witness to provide to their employer or, if appropriate, confirm the witness’s participation in a trial in order to secure a leave of absence.38 The goal is to select the “least intrusive method” of protection.39 Once the witness is confirmed and transferred to the Court, they are part of the process of “courtroom familiarization” during which they are showed the Court and have the procedural elements of a proceeding explained.40

B. In-Court Testimony

Trial protective measures include expunging the individual’s name or identifying features from the public record, prohibiting the parties and participants in a proceeding from disclosing the same, using electronic presentation of evidence, identity-altering technology, pseudonyms, and in camera proceedings.41 They may also include allowing a psychologist to monitor the witness’s well-being, allowing a support person to sit next to the witness, adapting the setup of the Court to prevent eye contact between the witness and the accused, and using video-links to allow the witness to testify outside the courtroom.42 The ICC states that these protective measures do not affect the fairness of the trial and apply equally to all witnesses, whether called by the Prosecution, Defense, the legal representatives of the victims, or the Judges.43 In the Lubanga trial, the Court ordered the implementation of protective measures including withholding witness identities from the public, using pseudonyms, distorting voices, screens separating the accused and witnesses, and conducting parts of the proceedings in closed sessions.44 Voice distortion and pseudonyms were also used during the Katanga trial.45 The Bemba trial, which had a high number of witnesses who claimed sexual violence, also used pseudonyms and face distortion.46

Witnesses have reported feeling safe during their testimony, with eight of nine survivors of sexual violence choosing the highest safety rating with regard to their courtroom experience.47 Women, particularly, stated that they felt a sense of safety and gave slightly higher satisfaction ratings to the VWU support during testimony than their male counterparts.48 Nevertheless, some witnesses reported unease regarding their participation with the court when planning their return home stating that they “wanted to talk to someone about my safety when I return home” while another witnesses said they feared there was no guarantee of safety because they felt “that the accused knows me, even though he could not see me.”49

C. Post-Testimony Protocol

The fears of participating witnesses do not end when their testimony is over. Said one witness, “now, after my testimony, I will have a bigger need of protection.”50 Another stated that their “life will look like the life of somebody who has enemies.”51 The comprehensive protection measures offered by the ICC do not necessarily extend for an indeterminate amount of time. Other than relocation, it is not likely that a witness will obtain a sort of “life protection” post-testimony.52

D. Weaknesses

Despite comprehensive measures, some witnesses continue to be concerned for their own safety. Witnesses in the Lubanga and Katanga cases revealed that, despite an intricate system of protective measures, they fear a backlash from their communities:

I was worried about my security […] and that the protective measures were not enough. People can easily read transcripts of the proceedings on the internet and identify me.53

This fear may not be enough to result in protective protocols after a survivor testifies, as qualification for the ICC Protection Program must be based on objective grounds, such as actual threats and “personal preferences or subjective fears of individual witnesses are not enough.”54 Even when protections are granted, they may not be entirely successful. During the Lubanga trial, a transcript for a hearing between defense counsel and a judge was unintentionally broadcast and the Court subsequently refrained from holding private sessions until it could be certain that the issue would not reoccur.55 The report highlights that sexual assault survivors were not necessarily part of the positive responses to questions regarding post testimony experiences, which may have skewed the results in favor of witnesses who provided testimony in less stigmatized trials and who had support from community members or family prior to testifying.56

IV. Possible Issues when Applying Current Protocol to a Digital Repository

While the current ICC witness protection protocol is comprehensive and, despite some challenges, generally succeeds in offering protections to the survivor-witnesses it engages with, it might not be enough to uphold the Rome Statute’s mandate of “protecting the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.” The resources of the Court are limited and providing protection to the witnesses during the pre-testimony, testimony, and post-testimony stages of witness cooperation will become exponentially more expensive and difficult if the Court has to contend with massive amounts of media and other data. While the current protection protocol for in-chambers testimony, including voice or face distortion, will probably continue to be effective for those witnesses who are providing live testimony, new policies may have to be implemented with a digital evidence repository. These potential new policies should address issues of identification/anonymization, consent, and storage.

A. Identification/Anonymization Issues

As stated in Section III, it is a primary goal of the VWU to conceal interactions between individuals and the Court, which may prove more difficult with the continued use of digital evidence. In 2017, the Office of the Prosecutor issued an arrest warrant for Libyan military commander Mahmoud Mustafa Busayf Al-Werfalli which heavily relied on open source information, specifically media that depicted several victims being shot and killed.57 When describing the videos in the warrant, the victims are generally referred to as “unidentified men,” while others are described as hooded or otherwise not identifiable.58 This is a notable weakness in the ICC’s victim protection protocol going forward. An inability to identify survivors does not mean the presentation of their data in court shields them from privacy risks. By its nature, digital evidence will mean that it should be easier to provide evidence for crimes in the Court; victims will no longer have to be individually identified and the Prosecutor will have to expend less resources, both in money and time, to gather evidence. However, the fact that the survivors are unidentified to the Court does not mean they are unidentifiable .

The VWU may successfully keep survivors from being identified now as it is as able to contact them directly in a way that may no longer be possible when the evidence comes from digital media sources which may or may not be traceable. There is little that can be done to offer any of the pre-trial protections currently in place at the ICC when the “witness” in question is not really a witness at all, at least not in the traditional sense, but rather an unidentified individual in a given conflict zone. A witness quoted in Section III spoke of their fears that someone could read court transcripts and find out who they are, possible because they fear that members of their community or others would take retributive action against them when they return from testifying. This fear would go from a concern that someone could find a transcript to a fear that someone could find the identifiable video or photograph of their attack. This identification, as explained in Section II has the potential to irrevocably alter an individual survivor’s life. This fear may make potential witnesses wary of the evidence collection methods of the ICC.

The ICC will have to look at the protection of witness privacy as something to be done on the backend of evidence collection. Witnesses will likely no longer first be identified and then require protections from the Court. In fact, when dealing with digital evidence, it is possible that a witness may never directly engage with the Court. Therefore, the Court has to consider how it will effectively and adequately protect an exponentially larger number of witnesses than it has ever had before and do so while possibly never being able to identify the individuals in the manner required by the current protection protocol.

B. Consent

The Court should also consider issues of consent, which likely have not previously been primary concerns when engaging with witnesses. Every witness that has provided testimony or otherwise engaged with the Court has ostensibly done so willingly. This may or may not be the case when using digital evidence. Studies have shown that whether or not disclosure of traumatic events serves a therapeutic purpose may depend on the reactions of recipients to the disclosure.59 Some jurisdictions around the world allow effectively forced testimony by allowing law enforcement to threaten survivors of sexual violence who are unwilling to testify with jail time.60 Victim’s rights groups have denounced this practice. Colby Bruno, of the Victim’s Rights Law Center highlights the importance of survivor consent to testimony, saying:

[I]f the more private victims or victims who are emotionally fragile do not want to report and go through a lengthy process that is sure to re-traumatize them, then they should not have to, and that should be their choice.61

The previous positive experiences witnesses have had while testifying have always inherently respected a survivor’s right to choose to testify. Even when confronted with difficult cross examination, witnesses still ultimately had agency in testifying.62 Forced testimony, in the jurisdictions which allow it, can lead to a fraying of the relationship between a survivor-witness and law enforcement. For example, in the United States, where material witness warrants allow District Attorneys to jail potential witnesses for refusing to testify against a defendant, witnesses who the warrants have been used against have reported being unlikely to engage with law enforcement in the future.63

This example is not to suggest that the use of digital evidence means the Court would perpetrate this same kind of coercion of witnesses. However, the relationship between potential witnesses and the Court is one of the most important tools in bringing successful cases and it may be strained if survivors do not sufficiently feel as though they have agency and choice in having their attack used in Court.

C. Storage

The Court should also consider the length of time for which it will store data. The protections offered by the ICC to cooperating witness reasonably come to an end at a given point, specifically when the witness is no longer a participant in a trial or investigation or is otherwise not at risk.64 Given this termination of protection, the question arises of when an individual is no longer “at risk” with a digital repository and when they are considered to be cooperating with the Court? Will the Court keep the digital evidence stored past the end of a trial and appeals? If so, for what purpose? Prolonged storage would expand the time during which an individual could be considered a witness or otherwise engaged with the Court. If data is kept after it is no longer in active or contemplated use by the Court, individuals would practically be in continued cooperation with the Court and therefore at risk for the sorts of reputational harms I highlighted in Section II. Whether it is kept private or public, as highlighted in Section I, there might be a risk of publication as a result of common data-breaches. The Court should consider how long it intends to keep media in order to adhere to established protection principles.

V. Possible Solutions

The ideas I propose are mostly geared towards the protection of witnesses before they are identified by the Court. As reported in Section III, the current protection system is rated positively by past witnesses and has, by most markers, succeeded in the goals of the Court to protect them. There is not, however, a robust system in place to protect witnesses who are depicted in media used as evidence by the Court but do not ultimately engage directly with the Court so as to avail themselves of the in-chambers protections or relocation.

The issues of consent and anonymization may be dealt with together since they both center around a survivor being publicly identified. There is no practical way to ensure informed, explicit consent universally. For example, a third-party may document someone’s attack and provide that evidence to the Court without the survivor’s knowledge. The person depicted in the evidence cannot give explicit consent so ensuring maximum anonymization is the next best solution to both the consent and anonymization issues faced by the Court. Censoring evidence to anonymize the identities of those in the video or image should be the default in the Court’s evidence collection. This would also help digital evidence collection processes adhere to the VWU’s standard of attempting to keep cooperation with the Court anonymous. It is of benefit to the Court that some organizations have already begun to engage with this issue and some of their solutions may prove helpful to the ICC. One organization of note is WITNESS, a leader in human rights documentation.65 Their technology has been previously used by the Court.66 The organization provides video equipment and training to activists and has continued to evolve as the sources of digital evidence have changed. With their creation of ObscuraCam in collaboration with the Guardian Project, WITNESS advocates that those who document human rights abuses “stop, think, and be empowered to control the media they are capturing.”67 ObscuraCam allows for the blurring or pixelization of people captured in images and videos.68 The intent behind the technology, of allowing people to “make purposeful choices about when they speak out and what degree of anonymity they hold for themselves” should be the Court’s goal as well.69

The Court should work with NGOs toward comprehensive witness education on the use of privacy protective tools such as ObscuraCam when documenting human rights abuses. Working with those organizations to educate potential witnesses on the use of this kind of technology could relieve some of the concerns around consent and anonymization, thereby potentially increasing a feeling of relative security within the survivor population. Though the universal use of this technology might not be achievable due to issues of access, demonstrated efforts by the Court to ensure privacy to the largest extent possible may reflect positively on the overall feeling of witnesses towards the Court’s evidence repository.

With regards to the storage question, the Court should consider principles of storage limitation and potentially place a time limit on media and data retention. The concept of storage limitation is an established principle in the world of privacy law. Article 5 of the General Data Protection Regulation, a European Union regulation on data protection and privacy, states:

Personal data shall be: kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes, or statistical purposes […] subject to implementation of the appropriate technical and organizational measures required […] to safeguard the rights and freedoms of the data subject.70

Additionally, one of the foundational principles of privacy by design, a philosophy geared towards the creation of databases that consider data privacy during each stage of development, is purpose specification. 71 The purpose for which a specific piece of data is kept must be identified and, usually, communicated to the individual data subject at, or before, the collection of the data.72 Privacy by design principles highlight that:

[T]he use, retention, and disclosure of personal information shall be limited to the relevant purposes identified to the individual […] Personal information shall be retained only as long as necessary to fulfill the stated purposes, and then securely destroyed.73

The issue of when to delete should be considered in relation to the length of a trial. If the Court has no anticipated need for evidence past the end of a preliminary investigation, trial, or appeal, i.e. the lifecycle of a Court proceeding, it should consider the balance between retaining evidence and the potential risks to individuals depicted in the media. As highlighted in Section II, the harms which could come to identified sexual violence survivors are severe and life-altering. They should be weighed against the potential future use of the evidence. This balancing might be helpful in the creation of a specific time period after which evidence would be deleted.

It is possible that the Court may decide that the balance between an individual privacy right and the overall public good that may come from data retention falls in favor of indefinite retention and chooses to permanently store evidence. If so, this policy should be clearly communicated to the public through witness outreach and education efforts in order to ensure that individuals who provide evidence to the Court are not left feeling abused or misled regarding the use of their evidence. If it is the Court’s intention to store evidence past the end of a proceeding, it should attempt to ensure that those providing it are aware that they are effectively in cooperation with the Court indeterminately.

VI. Conclusion

In light of the creation of a digital repository, the ICC should consider the risk of individualized harms which may come to those portrayed in digital media used at trial and stored by the Court. Whether the repository is kept public or private, risk of disclosure and publication inherently exists as a result of the nature of data storage. Possible publication should be of specific concern to the Court due to the nature of the crimes which it investigates, specifically crimes of sexual violence including mass rape and sexual assault. Identification as a survivor of sexual violence carries severe, often negative, and possibly life-altering consequences which include psychological trauma, familial breakdowns, and financial instability. Due to these risks, the Court should consider its current witness protection protocols which, although shown to be successful in offering protection to past witnesses, might not be enough as a result of new issues of identification, consent, and storage length. In order to successfully protect survivors, the Court should consider implementing a witness education program which informs the public of privacy protective tools when documenting attacks as well as consider setting a time limit for data retention.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Emma Irving, And So It Begins… Social Media Evidence in an ICC Arrest Warrant, Opinio Juris (Aug. 17, 2017), available online; The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, ICC-01/11-01/17, Warrant of Arrest (PTC I, Aug. 15, 2017) [hereinafter Werfalli Arrest Warrant], available online. ↩

2. 2.

   See Center for Strategic and International Studies, Significant Cyber Incidents Since 2006, available online (last visited May 26, 2020). ↩

3. 3.

   Laura Silver, Smartphone Ownership is Growing Rapidly Around the World, but Not Always Equally, Pew Res. Center (Feb. 5, 2019), available online. ↩

4. 4.

   Skye Wheeler, “My heart is always scared”: The Simmering Mental Health Crisis for Rape Victims in War, World Pol’y (Apr. 4, 2017), available online, archived. ↩

5. 5.

   Médecins Sans Frontières, Shattered Lives: Immediate Medical Care Vital for Sexual Violence Victims 13 (2d ed. Jun. 2019), [hereinafter Shattered Lives], available online. ↩

6. 6.

   Id. at 13. ↩

7. 7.

   Id. at 13, 28. ↩

8. 8.

   Wheeler, supra note 4. ↩

9. 9.

   See generally, Missale Ayele, Public Health Implications of Mass Rape as a Weapon of War, Ga. St. U. (Public Health Thesis, May 7, 2011), available online. ↩

10. 10.

    Shattered Lives, supra note 5, at 13. ↩

11. 11.

    Id. at 18. ↩

12. 12.

    Nicola Jones, Janice Cooper, Elizabeth Presler-Marshall & David Walker, The Fallout of Rape as a Weapon of War 3, ODI (Jun. 2014), available online. ↩

13. 13.

    Id. at 3. ↩

14. 14.

    Id. at 3. ↩

15. 15.

    Id. at 3. ↩

16. 16.

    Cassandra Clifford, Rape as a Weapon of War and its Long-Term Effects on Victims and Society, 7th Global Conference: Violence and the Contexts of Hostility (May 7, 2008), available online. ↩

17. 17.

    Id. ↩

18. 18.

    Id. ↩

19. 19.

    Tina Sideris, Rape in War and Peace: Some Thoughts on Social Context and Gender Roles, 43 Agenda 41, 42 (2000), paywall, doi. ↩

20. 20.

    Report of the Secretary-General, Conflict Related Sexual Violence, UN Doc. S/2019/280, at 8 (Mar. 29, 2019), available online. ↩

21. 21.

    Charli Carpenter, War’s Impact on Children Born of Rape and Sexual Exploitation: Physical, Economic and Psychosocial Dimensions, University of Pittsburgh Working Paper (Sep. 21, 2005), available online. ↩

22. 22.

    Conflict Related Sexual Violence, supra note 20, at 8. ↩

23. 23.

    Carpenter, supra note 21. ↩

24. 24.

    Id. ↩

25. 25.

    Witnesses, ICC, available online (last visited May 26, 2020). ↩

26. 26.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 68, available online. ↩

27. 27.

    Id. ↩

28. 28.

    Rome Statute, supra note 26, Art. 43. ↩

29. 29.

    Protection and Support, VRWG, available online (last visited May 26, 2020). ↩

30. 30.

    Rome Statute, supra note 26, Art. 54. ↩

31. 31.

    (There has been previous litigation to establish the respective roles that the Office of the Prosecutor and the Victims and Witnesses Unit play in witness and victim protection but since the intricacies of this division of duties lie beyond the scope of this comment, I only provide this general overview). ↩

32. 32.

    Rome Statute, supra note 26, Art. 57. ↩

33. 33.

    Stephen Cody, Alexa Koenig, Robin Mejia, & Eric Stover, UC Berkeley HRC, Bearing Witness at the International Criminal Court: An Interview of 109 Witnesses 19 (Jun. 2014), [hereinafter Bearing Witness], available online. ↩

34. 34.

    Id. at 19. ↩

35. 35.

    Witnesses, supra note 25. ↩

36. 36.

    Id. ↩

37. 37.

    Coalition for the International Criminal Court, Is Enough Being Done to Protect ICC Witnesses? (May 18, 2015), available online. ↩

38. 38.

    Bearing Witness, supra note 33, at 19. ↩

39. 39.

    Witnesses, supra note 25. ↩

40. 40.

    Id. ↩

41. 41.

    International Criminal Court, Rules of Procedure and Evidence, R. 87 (2d ed. Sep. 9, 2013), available online, archived. ↩

42. 42.

    Witnesses, supra note 25. ↩

43. 43.

    Id. ↩

44. 44.

    International Bar Association, Witnesses Before the International Criminal Court 30 (Jul. 2013), available online. ↩

45. 45.

    Id. at 31. ↩

46. 46.

    Id. at 31. ↩

47. 47.

    Bearing Witness, supra note 33, at 47. ↩

48. 48.

    Id. at 47–48. ↩

49. 49.

    Id. at 50. ↩

50. 50.

    Id. at 53. ↩

51. 51.

    Id. at 53. ↩

52. 52.

    See generally, Tom Maliti, Expert: “Relocation of a witness does not entail life protection by the ICC ”, Int’l Just. Monitor (Jul. 29, 2011), available online

    (reporting an interview with Mariana Pena, the Permanent Representative at The Hague of the International Federation for Human Rights who stated that relocation of a witness and possibly their families could mean the witness remains in the secondary location for the rest of their lives but that “participation in the program will need to come to an end at a certain point […] because it is costly, but also because security risks will necessarily decrease after some time.”). ↩

53. 53.

    Bearing Witness, supra note 33, at 23. ↩

54. 54.

    Jennifer Easterday, Witness Protection: Successes and Challenges in the Lubanga Trial, Int’l Just. Monitor (Jun. 26, 2009), available online. ↩

55. 55.

    Id. ↩

56. 56.

    Id. at 62. ↩

57. 57.

    Nikita Mehandru & Alexa Koenig, Open Source Evidence and the International Criminal Court, 32 Harv. Hum. Rts. J. (Apr. 15, 2019), available online; See also Werfalli Arrest Warrant, supra note 1, at 8–11. ↩

58. 58.

    Werfalli Arrest Warrant, supra note 1, at 8–11. ↩

59. 59.

    Sarah E. Ullman, Correlates and Consequences of Adult Sexual Assault Disclosure, 11 JIV 554, 555 (Dec. 1, 1996), paywall, doi. ↩

60. 60.

    See Samantha Michaels, Should Rape Victims Have to Spend Time in Jail for Not Testifying? Louisiana’s Prosecutors Think So, Mother Jones, Apr. 19, 2019, available online; See also Henry McDonald, Alleged Rape Victim Arrested in Ireland for Refusal to Testify, The Guardian, Feb. 12, 2012, available online. ↩

61. 61.

    Bronwyn Isaac, Why Forcing Women to Testify Against their Assailants Enforces Victim Blaming, Bustle (Apr. 21, 2017), available online. ↩

62. 62.

    Bearing Witness, supra note 33, at 49

    (reporting that a witness felt uncomfortable with some questions from counsel, saying “I was very angry because the lawyer twists my answers around and around.”). ↩

63. 63.

    See Sarah Stillman, Why Are Prosecutors Putting Innocent Witnesses in Jail?, The New Yorker (Oct. 17, 2017), available online

    (reporting that a witness who refused to testify against her abuser and was subsequently jailed saying that she would “probably not call the police again, as long as it wasn’t life-threatening.”). ↩

64. 64.

    Maliti, supra note 52. ↩

65. 65.

    Our Story, WITNESS, available online. ↩

66. 66.

    Id. ↩

67. 67.

    Announcing ObscuraCam v1: Enhance Your Visual Privacy!, Guardian Proj., available online (last visited May 26, 2020). ↩

68. 68.

    Id. ↩

69. 69.

    Id. ↩

70. 70.

    Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons With Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation), 2016 O.J. (L 119), available online, archived; See Lydia F. de la Torre, What Does “Storage Limitation” Mean Under the EU Data Protection Law?, Medium (Jan. 22, 2019), available online

    (explaining the principle of storage limitation further). ↩

71. 71.

    See generally, Ann Cavoukian, Privacy by Design: The 7 Foundational Principles, IAPP (Nov. 2, 2010), available online. ↩

72. 72.

    Id. ↩

73. 73.

    Id. ↩

II. Harnessing User-Generated Content as Evidence in the ICC

A. The Spread of Information Communication Technology

Since the advent of social media and the introduction of the iPhone in 2007, information and communication technology has evolved and spread rapidly on a global scale. As of November 2019, there are an estimated 5.15 billion people with mobile devices worldwide, making up over sixty-six percent of the world’s population.5 Ninety-seven percent of the world’s population lives within reach of a mobile cellular signal, and ninety-three percent of the world’s population lives within reach of a mobile broadband internet service.6 This widespread use of cell phones and global internet connectivity has brought with it new opportunities to document crimes and has eliminated the traditional financial barriers of photography and video recording.7

With smartphones in the hands of more people than ever before, there is no longer a need for people to buy a camera, as they now have one in their pocket to use whenever they would like. With mobile phone video becoming such an accessible technology, it has become increasingly important to “harness the potential of citizens documenting crimes, which may be used as evidence in international criminal trials.”8 These advances have ushered in an era of digital evidence, and, more specifically, of user-generated evidence.9 “User-generated evidence is recorded on a device such as a smartphone by an ordinary citizen with the intent to achieve legal accountability for wrongdoing.”10

B. External Partnerships Necessary to Collect, Analyze, and Use Digital Evidence

User-generated evidence provides new opportunities for the ICC, which has faced obstacles in obtaining sufficient evidence in the past. “Considering the Court’s global mandate, coupled with its limitations in funding and staff, obstacles to obtaining evidence are unsurprising.”11 Noting its struggles with heightened evidentiary standards and limited witness protection resources, the OTP emphasized a need for more diversified evidence as an alternative to witness statements in its 2012–2015 Strategic Plan.12 The OTP also recognized the “explosive growth” of digital data as a promising and highly reliable alternative and committed to expanding its own internal capacity as well as its reliance on external partners to work with digital evidence.13

In 2013, at the Salzburg Workshop on Improving War Crimes Investigations, the OTP and the ICC met with specialists in cyber investigations, human rights investigators, foundation representatives, and University of California Berkeley faculty and students to discuss how to gather and analyze digital evidence relevant to serious international crimes.14 Noting that “a lack of resources is the greatest constraint on the OTP’s ability to produce quality digital evidence,” the workshop concluded that the OTP should focus on fostering external partnerships with INGOs and private tech companies already operating in this space.15

In its 2016–2018 Strategic Plan, the OTP noted that “strategic partnerships with the law enforcement community, INGOs, and academic institutions were crucial to keeping up with developments in the field” of cyber investigations.16 With this in mind, the OTP outlined a strategy to build its own internal capacity by recruiting experts and investing in equipment, staff training, and partnerships.17 The success of this approach was noted in the OTP’s most recent strategic plan, which found that the diversification of evidence allows for “better corroboration of the facts, a lesser reliance on witnesses, and a greater resilience in the face of security challenges or witness interference.”18 The OTP has again committed to enhancing this practice from 2019 to 2021 through more strategic coordination with partners:

The Office can expedite its core activities through more strategic cooperation and coordination with partners, including first and early responders. Notably, the investigative landscape has been evolving in different ways: (1) more individuals and civil society actors are collecting relevant information as events unfold; (2) the awareness has grown that police and military contingents deployed by the international community may play a role in the preservation of evidence, and; (3) specific bodies and mechanisms are being created to work on the collection and preservation of evidence to support national and international jurisdictions. […] Where possible, and while emphasising that such cooperation cannot replace actual investigations by the Office, the Office will enhance its interaction and cooperation with partners through a structured dialogue on matters relating to collection and preservation of evidence.19

The “specific bodies and mechanisms” that have been created to collect and preserve evidence are discussed in more detail below.

C. User-Generated Evidence Apps as a Possible Solution

Presently, two apps have been designed with the specific goal of collecting and preserving user-generated evidence for international criminal prosecutions. The eyeWitness to Atrocities app was launched by the International Bar Association (IBA) after consulting with lawyers at the ICC and other international and hybrid tribunals.20 The second app, CameraV, is a joint venture between the video advocacy organization WITNESS and a software technology group, Guardian Project.21 It was funded by the technology company Benetech, a start-up based in Palo Alto, California.22

Both the IBA and WITNESS understood that the development of a technically sophisticated and replicable methodology behind the process of bringing user-generated evidence into courtrooms would be central to the credibility of their claim that what users filmed would be useful in a court of law.23

As such, both apps have built-in features to help address authenticity concerns in the hopes that the user-generated evidence will be admissible in Court.

The ICC has developed specific standards for authenticating video, photography, and audio-based evidence.24

The ICC requires metadata be attached to all submissions, as well as documentation showing chain of custody, the identity of the source, the original author and recipient information, and the author and recipient’s prospective organization.25

Both eyeWitness to Atrocities and CameraV record vast amounts of metadata to meet these admissibility standards:

[I]ncluding GPS coordinates, light meter readings, and nearby cell tower signals […] to enable the location and time of the footage to be verified.26

The IBA and WITNESS have both embarked in outreach efforts to conflict-affected communities to encourage individuals to download eyeWitness to Atrocities and CameraV and to use the apps to secure user-generated evidence.27 “As of July 2017, the IBA had received 1,200 pieces of footage, translating into some seventy hours of potential evidence.”28 “Over 10,000 users have downloaded CameraV.”29 Beyond advocating for users to download and use the apps, the IBA and WITNESS have also sought to educate users on the types of evidence needed to build a criminal case, emphasizing the need for linkage evidence.30

WITNESS has developed a 200-page field guide, which it uses to train those who may witness crimes.31 The field guide, Video as Evidence, explains some of the basic legal concepts of evidence and provides tips for capturing evidence in a way that could be useful in a criminal case while also emphasizing safety concerns.32 The IBA has produced materials to explain how to use the eyeWitness to Atrocities app but has focused primarily on outreach through traditional media and social media and in-person outreach to local human rights groups in Syria, Kenya, and South Sudan.33

While user-generated evidence apps are a promising development in the field of international criminal cases, they also raise a new set of concerns. Most notably, this development marks a shift in the traditional investigatory process from professional, court-appointed investigators to private citizens. As Hamilton noted:

The future of evidence collection is no longer primarily in the hands of investigators employed by a Hague-based court. Ordinary users of cell phones can now influence what crimes and which perpetrators will (and will not) be prosecuted.34

This shift brings with it new security and accountability concerns, which are discussed in detail below.

III. Security Concerns Unique to User-Generated Evidence

There is an inherent amount of risk involved in evidence collection. With the advent of user-generated evidence apps and the OTP’s increased reliance on digital evidence, some of those risks are being shifted “away from court-appointed investigators who have institutional support and an evacuation plan, to people without such protections.”35 These security considerations are a significant factor in both the creation and preservation of digital evidence as well as its use in a criminal trial. This section of the comment will discuss the risks that users face at all stages, and will also examine how effectively INGOs have addressed those risks through app design and education efforts.

A. Security Risks of Evidence Collection

As eyeWitness to Atrocities notes in its FAQs:

[T]here are always risks involved with documenting human rights abuses. There is not only danger from the user’s proximity to a volatile situation, but also the risk of arrest or other repercussions from authorities who do not want information about their actions to be publicised.36

Indeed, many of these security risks were part of the reason the OTP sought to diversify its evidence collection strategies, given its limited resources to provide witness protection.37 “Many users are, in a literal sense, witnesses; they often witnessed the commission of the atrocities they seek to document.” One can get a sense of the security risks that users face by looking at the risks that previous ICC witnesses faced.

While the Court does not publish statistics on the number of its witnesses that face security threats, it is possible to get a sense of the scale of the problem when considering that in the Court’s first case, the OTP, over a ten-week period, referred thirty-two witnesses into the Court’s protection program. That program was established to protect those who are at risk of harm and/or death.38

The ICRC discusses the risks that individuals face when providing information in their Protection Guidelines:

In practice, risks may range from physical and mental harm or threats of harm, discrimination, social marginalization and stigmatization, and are often not foreseen by the individual soliciting the information or the person providing it. Particularly in armed conflict and other situations of violence, people providing information to protection actors may even face reprisals, regardless of the content of the information shared, for merely participating in the data collection process.39

Both eyeWitness to Atrocities and CameraV have built-in safety features to mitigate these risks, allowing users to delete material quickly.40 EyeWitness to Atrocities also has a “panic button” that allows the user to erase all recorded information and the app itself to make it appear as though the app is not even on the phone at all.41 While these features are meant to mitigate the risk of retaliation, they are not infallible.42 Ensuring that users are adequately informed of these risks, and able to provide meaningful informed consent before collecting evidence, is of the utmost importance and will be discussed in Section IV.

B. Security Risks of Evidence Retention

The risk of retaliation does not end after the evidence has been collected. There is further risk that the user can be identified and retaliated against as the evidence is transmitted and stored. Both eyeWitness to Atrocities and CameraV offer built-in anonymity options as a means of risk reduction.

[eyeWitness to Atrocities] offers users anonymity by connecting verification of uploaded images to the phone itself rather than to any user associated with the phone. Everything a user records while inside the app is automatically tagged and encrypted, with a hash value of the pixel count recorded as a marker against subsequent manipulation.43

CameraV also creates a unique hash value identifier connected to the phone rather than the user to protect the user’s anonymity.44

Although both apps encrypt information and send it to a secure location, there is always a risk that these secure sites will be hacked. When discussing the issue of hacking, Mark Ellis, the Executive Director of the IBA, explained the decision to store eyeWitness to Atrocities’s footage in a secure evidence locker based in London:

And the idea I had was, well, go to a group that gets a hundred thousand attempts to penetrate their system every single day. And that’s LexisNexis […] [F]ortunately, LexisNexis works very closely with the International Bar Association, and so we approached them and sat down and said here is what we have, what do you think […] They have built us this backend database on this, and one of the things we had to ask ourselves is where should this backend vault be? Should it be in the United States, or should it be somewhere in Europe? Where do you want to hold that, and it was felt that in the United States, there wasn’t that degree of confidence actually […] and we made the decision, and so that vault now is in Europe. It is in London.45

The IBA now promises that their partnerships ensure that all footage is secure from hacking.46 “Yet with all the best protocols in place, recent experience suggests that highly motivated hackers are able to breach highly sophisticated security systems.”47

C. Security Risks at Trial

This risk of retaliation follows the user through trial as well. The rules of disclosure that apply before and during a trial “may require that both documenters and subjects be named and made available for questioning by the other party in the case.”48 While the user-generated evidence apps are designed to ensure a level of anonymity, preventing adherence to disclosure rules, “there is always the possibility that a motivated defense team will be able to uncover their identity.”49 The protection regime of the ICC has provisions to address this; however, their resources for providing protection may be limited.50 Additionally, there is no guarantee that the user will be categorized as a witness and fall under the ICC’s existing witness protection scheme. Indeed, the goal of these apps is to make the apps themselves witnesses. As Hamilton notes:

[F]or those users who film linkage evidence after the fact, and who never appear in the Hague, their role is arguably more akin to that of an intermediary—someone who connects the Court with a witness. And, for now at least, the Court only offers protection services to intermediaries on a case-by-case basis.51

Because of these many uncertainties, “many resources that encourage the documentation of crimes rightly emphasise informed consent at each stage of creating and sharing such information to ensure that participants are fully informed about the potential risks of their involvement.”52 Whether or not the INGOs deploying user-generated apps succeed in receiving a user’s informed consent is a more complicated question that is addressed in the next section of this comment.

IV. Recommendations to the OTP to Mitigate Security Risks Inherent in the Collection, Retention, and Use of User-Generated Evidence

A. Mitigating Security Risks in the Collection of User-Generated Evidence

As discussed throughout this comment, security risks are inherent in the role of evidence collection. While the IBA and WITNESS have sought to minimize these risks through strategic app design and education efforts, these efforts are not infallible. Security risk may be impossible to eliminate, but it can be mitigated by securing meaningful informed consent and the management of an individual’s expectations. As Hamilton notes:

The greater [an individual’s] expectations, the more risks they are likely to be willing to take. And the key question for INGOs involved in marketing user-generated evidence apps or otherwise encouraging local populations to document crimes, as well as for courts relying on user-generated evidence more generally, is the extent to which they are confident that users fully comprehend the risks and benefits involved in evidence collection.53

In order to give meaningful informed consent, the user needs to be informed of all risks and voluntarily accept those risks.54 In order for consent to be voluntary, one party cannot “promise, nor even raise the prospect of, a benefit that is not assured.”55 This is especially important in the context of user-generated evidence, where the benefits of gathering the evidence are still unknown. If users believe that the footage they capture will be used to secure a conviction against a perpetrator, they may be willing to take more risks.56 If they are aware that the evidence might not be admissible in Court, or that it may be utilized by the perpetrator himself, they might not take the same risks.57

The OTP could ensure that users are able to give meaningful informed consent moving forward by mandating risk management and expectation management in its contracts with INGOs, as suggested by Hamilton:

While the two organizations behind the user-generated evidence apps that are currently on the market are trying to reduce the risk of unmet expectations in their outreach programs, the situation for users going forward cannot be left to the good faith of these organizations. There is nothing to prevent other organizations entering this market in the future, and—in the absence of a contract or similar mechanism—no guarantee that such organizations will follow the practices that the IBA and WITNESS have been trying to develop.58

If the ICC were to contract with INGOs, it could ensure consistent messaging to users about the risks of evidence gathering and help to ensure that users are not taking those risks on the assumption that it will be used in Court.59

INGOs involved in collecting user-generated evidence are acting as intermediaries by connecting Court officials to evidence, and traditional intermediaries are contracted by the Court and bound by an associated code of conduct.60 Hamilton cites two major concerns that any contract would need to address: “user security and the realistic management of user expectations.”61 To address user security, the OTP should require that INGOs are trained on the Court’s Guidelines on Good Practices on Risk Prevention and that all interactions with users align with the principles of harm minimization.62

To ensure that consent is given voluntarily:

[T]he OTP could usefully draw from the language in its existing Code of Conduct for Intermediaries to specify that an INGO doing outreach on user-generated evidence ‘shall not make commitments to […] (potential) witnesses […] that he/she/it is not in a position to fulfill.’63

This would include any promise that the user may remain anonymous, given the uncertainties discussed previously, and would also require full disclosure that the evidence may never be used by the Court at all.64 If the OTP establishes that it will not accept user-generated evidence provided by any INGO found to violate these contract provisions, INGOs will be highly incentivized to comply.65

B. Mitigating Security Risks in the Retention of User-Generated Evidence

The International Committee of the Red Cross (ICRC) has established Protection Guidelines as a model of professional standards for human rights actors and humanitarian actors working in conflict situations.66 Hamilton reminds us that “INGOs are not legally required to follow these, or any other, guidelines. But Courts seeking to use user-generated evidence in their investigations and proceedings could establish a norm of getting INGOs to do so by stipulating that they will only accept user-generated evidence gathered through organizations that adhere to these guidelines.”67

In 2013, the Protection Guidelines were revised to address advances in information and communication technology, with special consideration given to the ways in which sensitive information should be managed.68 The subsequent and most recent revision, issued in June 2018, further emphasized that “the rapid proliferation of initiatives to use information and communication technology in new ways for protection purposes and the growing body of law on data protection” requires updated guidelines for information management.69

Chapter 6 of the Guidelines establishes standards for:

[T]he processes of handling data and information (the collection, analysis, storage, sharing, use, destruction or archiving of data and information) that are required to enable evidence-informed action for quality protection outcomes.70

While explicitly addressed to human rights and humanitarian protection actors, the Guidelines emphasize the importance of these standards to other actors in the field of information gathering:

The standards outlined in this chapter should also be applied, when appropriate, by professionals working in humanitarian or human rights responses but not in traditional “protection” work—for instance, people working in assistance, media and communication, fundraising and information communication and systems technology—who may also be processing personal data and protection data and information collected from persons affected, witnesses or other sources.71

The Guidelines identify several security risks that individuals face during the collection, retention, and use of user-generated evidence that were discussed in the preceding section, ranging “from physical and mental harm or threats of harm, discrimination, social marginalization and stigmatization.”72 The Guidelines seek to mitigate these risks through a series of directives related to data minimization, data retention, data security, confidentiality, and information sharing.73 Specifically, as it relates to the risk of third-parties accessing the data while it is retained, the Guidelines state:

If an appropriate level of confidentiality and security for personal data or sensitive protection information cannot be guaranteed, the protection actor should refrain from collecting the data, or from transferring them. If security challenges develop, owing to a change in the environment since the data collection, the protection actor should destroy the data if it is not able to mitigate the risks to data security.74

By stipulating that user-generated evidence will only be accepted if these Guidelines are adhered to, the Court could mitigate the security risks inherent in the retention of such evidence and ensure that any future apps adhere to the highest standards of security.

C. Mitigating Security Risks in the Use of User-Generated Evidence

As discussed previously, the risks that users face at trial will depend on the way that user-generated evidence is characterized, if it is accepted by the Court at all. Hamilton discusses the two ways in which the Court might characterize the user:

If they accept the argument that a user-generated evidence app is a witness, then the user who recorded the footage is best analogized to an intermediary—someone who has helped the Court gain access to a witness. If, on the other hand, the judges require the authenticating testimony of a user to admit the video into evidence, then that user is best analogized to a witness.75

If the user is characterized as a witness, their security risks at trial can be mitigated through the Court’s existing witness protection scheme.76 While this characterization might ensure the safety of the user at trial, it also runs counter to the purpose of user-generated evidence apps that arose in response to the need for diverse evidence other than witness testimony.77 “The great hope of those involved in developing user-generated evidence apps, however, is that judges will accept the app itself as the witness.”78 Indeed, the apps were designed with self-authentication in mind.79 If the app itself is accepted as a witness by the Court, the user would not automatically fall under the Court’s witness protection scheme.80 Instead, the user is better analogized to an intermediary. Hamilton recommends two ways in which the Court could mitigate the risks that the user would face at trial if categorized as an intermediary: through an ICC-user contract and the application of the ICC Guidelines on the Use of Intermediaries.81

An ICC-user contract would act in the same way as an ICC-intermediary contract and would provide the user with the same amount of security.

Once someone is formally acknowledged by the Court as an intermediary in this way, then the Court has a degree of responsibility for that intermediary’s security. The Court’s responsibility is a subsidiary one. Per the model contract between the ICC and an intermediary, the primary responsibility for the intermediary’s security lies with the intermediary itself.82

However, the Court must take measures to manage those risks, up to and including the use of protective measures.83

However, “the Court does not generally contract with ‘self-appointed’ or ‘one-off’ intermediaries, which is likely to be an accurate characterization of most users.”84 Therefore:

[W]ritten guidelines, while not legally binding, could serve as a backstop and provide clarity about which actors are responsible for reducing risks to users (as well as what users are themselves responsible for).85

The ICC Guidelines on the Use of Intermediaries stress the responsibility of the intermediary to take precautions for their own safety, but when these measures fail to protect the user, then “appropriate protective measures shall be implemented [by the Court].”86 While the Guidelines apply automatically to any intermediary formally contracted by the Court, their coverage is decided on a case-by-case basis for intermediaries operating outside of a formal contractual relationship.87

As discussed above, users are unlikely to have a formal contractual relationship with the Court, leaving them no guarantee of coverage under the Guidelines. To resolve this uncertainty, Hamilton suggests that:

[T]he Court make a formal determination, ideally in advance of the Al-Werfalli trial, that any user whose footage is used at any stage of the legal process falls within the Guidelines. Making a categorical determination in relation to users whose footage the Court relies on would be a marked improvement in the security situation for users.

V. Conclusion

While some level of risk will always be inherent in evidence gathering, user-based evidence brings with it a set of unique concerns, as these risks are shifted away from institutional actors to private citizens. INGOs have sought to mitigate this risk and maximize the potential admissibility of user-based evidence through strategic app design. The OTP can further mitigate these risks throughout the various stages of user-based digital evidence, from evidence-gathering to trial, in its contracts with INGOs and with users themselves. The OTP should look to the contracts, guidelines, and policies that it already uses for intermediaries to ensure that users are able to give meaningful informed consent and to ensure that INGOs are using best practices in the gathering and storing of sensitive information through their evidence-gathering apps.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, ICC-01-11-01/17, Warrant of Arrest (PTC I, Aug. 15, 2017), available online. ↩

2. 2.

   International Bar Association, Evidence Matters in ICC Trials 27 (Aug. 5, 2016) [hereinafter Evidence Matters], available online. ↩

3. 3.

   Rebecca J. Hamilton, The Hidden Danger of User-Generated Evidence for International Criminal Justice, Just Security (Jan. 23, 2019), available online. ↩

4. 4.

   Rebecca J. Hamilton, User-Generated Evidence, 57 Colum. J. Transnat’l L. 1, 55 (Nov. 7, 2018), available online. ↩

5. 5.

   Ash Turner, How Many Smartphones Are in the World?, BankMyCell, available online (last visited May 25, 2020). ↩

6. 6.

   International Telecommunication Union, Measuring Digital Development: Facts and Figures 2019, 8 (Nov. 18, 2019), available online. ↩

7. 7.

   Hamilton, supra note 4, at 15. ↩

8. 8.

   Evidence Matters, supra note 2. ↩

9. 9.

   Hamilton, supra note 4, at 3.

   (The term “user-generated evidence” was coined by Hamilton to refer to the trend of technologists and criminal justice advocates coming together to collect content recorded by ordinary citizens). ↩

10. 10.

    Id. ↩

11. 11.

    UC Berkeley Human Rights Center, Digital Fingerprints: Using Electronic Evidence to Advance Prosecutions at the International Criminal Court 3 (Feb. 2014) [hereinafter Digital Fingerprints], available online. ↩

12. 12.

    Office of the Prosecutor, ICC, Strategic Plan June 2012–2015, 22 (Oct. 11, 2013), available online. ↩

13. 13.

    Id. ↩

14. 14.

    Digital Fingerprints, supra note 11. ↩

15. 15.

    Id. at 9. ↩

16. 16.

    Evidence Matters, supra note 2, at 21. ↩

17. 17.

    Id. ↩

18. 18.

    Office of the Prosecutor, ICC, Strategic Plan 2019–2021, 13 (Jul. 17, 2019), available online. ↩

19. 19.

    Id. at 21–22. ↩

20. 20.

    Hamilton, supra note 4, at 17–18. ↩

21. 21.

    Id. at 18. ↩

22. 22.

    Id. ↩

23. 23.

    Id. at 28. ↩

24. 24.

    Nikita Mehandru & Alexa Koenig, Open Source Evidence and the International Criminal Court, 32 Harv. Hum. Rts. J., n.21 (Apr. 15, 2019), available online. ↩

25. 25.

    Id. ↩

26. 26.

    Hamilton, supra note 4, at 18. ↩

27. 27.

    Id. at 21. ↩

28. 28.

    Id. ↩

29. 29.

    Id. ↩

30. 30.

    Id. at 24–25.

    (Linkage evidence is evidence which connects the crime to the person or people responsible). ↩

31. 31.

    Id. at 25. ↩

32. 32.

    Id. ↩

33. 33.

    Id. at 26. ↩

34. 34.

    Hamilton, supra note 3. ↩

35. 35.

    Id. ↩

36. 36.

    FAQs: How does eyeWitness protect the security of the app users?, eyeWitness, available online (last visited May 25, 2020). ↩

37. 37.

    Evidence Matters, supra note 2. ↩

38. 38.

    Hamilton, supra note 4, at 37. ↩

39. 39.

    International Committee of the Red Cross, Professional Standards for Protection Work 109 (3d ed. 2018) [hereinafter Professional Standards], available online. ↩

40. 40.

    Hamilton, supra note 4, at 38. ↩

41. 41.

    Owen Bowcott, eyeWitness to Atrocities: The App Aimed at Bringing War Criminals to Justice, The Guardian, Jun. 7, 2015, available online. ↩

42. 42.

    Hamilton, supra note 4, at 38

    (quoting IBA director Mark Ellis’s acknowledgment that governments can seize the device and discover it was used to record evidence). ↩

43. 43.

    Id. ↩

44. 44.

    Id. ↩

45. 45.

    Mark S. Ellis, Shifting the Paradigm—Bringing to Justice Those Who Commit Human Rights Atrocities, 47 Case W. Res. J. Int’l L. 265, 269–70 (2015), available online. ↩

46. 46.

    Hamilton, supra note 4, at 44. ↩

47. 47.

    Id. at 45. ↩

48. 48.

    Evidence Matters, supra note 2. ↩

49. 49.

    Hamilton, supra note 4, at 51. ↩

50. 50.

    Evidence Matters, supra note 2, at 27. ↩

51. 51.

    Hamilton, supra note 4, at 38. ↩

52. 52.

    Evidence Matters, supra note 2, at 27. ↩

53. 53.

    Hamilton, supra note 4, at 52. ↩

54. 54.

    Id. at 30. ↩

55. 55.

    Id. ↩

56. 56.

    Id. at 30–31. ↩

57. 57.

    Id. at 31. ↩

58. 58.

    Id. at 54. ↩

59. 59.

    Id. ↩

60. 60.

    Id. ↩

61. 61.

    Id. ↩

62. 62.

    Id. ↩

63. 63.

    Id. at 55. ↩

64. 64.

    Id. ↩

65. 65.

    Id. ↩

66. 66.

    Professional Standards, supra note 39. ↩

67. 67.

    Hamilton, supra note 4, at 59. ↩

68. 68.

    International Committee of the Red Cross, Professional Standards for Protection Work 15 (2d ed. 2013), available online. ↩

69. 69.

    Professional Standards, supra note 39, at 16. ↩

70. 70.

    Id. at 106. ↩

71. 71.

    Id. at 110. ↩

72. 72.

    Id. at 109. ↩

73. 73.

    Id. at 110. ↩

74. 74.

    Id. at 131. ↩

75. 75.

    Hamilton, supra note 4, at 55. ↩

76. 76.

    Id. at 56. ↩

77. 77.

    Evidence Matters, supra note 2. ↩

78. 78.

    Hamilton, supra note 4, at 56. ↩

79. 79.

    Id. ↩

80. 80.

    Id. ↩

81. 81.

    Id. ↩

82. 82.

    Id. ↩

83. 83.

    Id. ↩

84. 84.

    Id. at 57. ↩

85. 85.

    Id. ↩

86. 86.

    Id. at 58. ↩

87. 87.

    Id. at 57. ↩

Given the issue laid out above, this comment addresses whether the ICC has a reliable means to work with the OSPs, and the countries in which the OSPs are incorporated, in order to access data that has been removed from public view for violating community guidelines and, barring that, whether there are alternative measures the ICC can take to ensure the reliable and real-time collection of evidence posted online. Further evidence will first be presented that major online service providers use community guidelines to remove potentially relevant evidence posted on their sites. Following that, the discussion turns to the potential ways through which the ICC can work with the American and Irish governmental and legal systems specifically, as the main OSPs are American firms with Europe, the Middle East, and Africa (EMEA) Headquarters in Ireland, and whether those avenues allow for enough access for the ICC to retrieve any relevant evidence from an OSP server. Finally, two alternative actions that could be undertaken by the ICC to protect its interest in online data are presented and analyzed; first, potential bilateral cooperation agreements with OSPs, and second, the establishment of a new online forum under the purview of or otherwise attached to the ICC for people with evidence of atrocities to submit their evidence directly. In the end, no one potential action is sufficient to solve the issue: this comment proposes that the most effective manner through which the ICC can ensure that it has access to any relevant digital evidence is to establish its own private forum dedicated to the collection and storage of online data, maintain dialog with the necessary OSPs until such a time as the ICC program becomes viable, and pursue what national and international legal or governmental cooperation is necessary.

II. The Problem: Facebook and YouTube Removes Evidence of War Crimes

Although the ICC has yet to formally open an inquiry into the various accusations of atrocities committed during the conflict in Syria, a preliminary examination into the actions taken against the Rohingya population in Myanmar was opened in 2018 and the OTP was granted the right to investigate in 2019.6 Both conflicts present a real possibility that crimes against humanity, whether war crimes or an outright genocide charge, have occurred and the ICC has been called upon to investigate the actions of multiple parties in the Syrian conflict through the same procedural stance by which it is now investigating the conflict in Myanmar. In addition, both conflicts illustrate the potential for the use of digital evidence to corroborate the occurrence of atrocities and the problems that stem from posting such evidence on major OSPs.

A. Facebook

Despite its effective use in other human rights contexts (i.e. the Arab Spring), Facebook has established some community guidelines that have produced negative consequences for activists seeking to shed light on ongoing crimes against humanity in both Syria and Myanmar. Facebook’s community standards have specific provisions against posts depicting or containing references to violence and criminal behavior, the general exploitation of humans, and sexual exploitation specifically. Under the violence and criminal behavior standard, any posts that show or allude to organized hate, mass murder, and organized violence or criminal activity are considered a violation and are subject to removal.7 Moreover, Facebook’s guidelines against posts depicting human exploitation requires the removal of posts that show or incite the use of child soldiers8 and any posts that allude to or portray sexual exploitation.9

While those policies may be reasonable and even necessary, they have already been used to remove potentially relevant digital evidence that could be used by the ICC in ongoing or potential future investigations. The story of one Syrian man, Abdulsalam, who witnessed and recorded the bombing of a bakery in al-Bab, illustrates the issue perfectly. In January 2014, the Syrian army dropped a barrel bomb on a bakery near Abdulsalam’s mosque (the Syrian army had a pattern of using barrel bombs on bakeries in particular) in what he described as “a particularly horrific bombing.”10 He took a few pictures of the helicopter that dropped the bomb, then went directly to the scene, where he took pictures of the destruction of the bakery in which he captured images of the civilian victims of the bombing. He uploaded those images to his Facebook account promptly following the attack, believing it to be the most effective way to preserve the pictures and spread the word about the true toll of the attacks.11

Avi Asher-Schapiro, writing in the Intercept regarding Abdulsalam’s posts depicting the al-Bab bombing and its aftermath, details Facebook’s response to his posts and highlights the main issue with Facebook’s policy:

Seven months later, Abdulsalam got an automated email from Facebook notifying him that the images had been removed. Other users had complained that his photos were too gory. By the time he got the email, Abdulsalam’s other copies of the pictures were gone; his hard drive had been burned, along with his small office, when the Islamic State stormed al-Bab and Abdulsalam fled across the border to Turkey.12

In addition to the primary issue of losing direct access to Abdulsalam’s firsthand evidence, Facebook’s deletion of his pictures compounded the issues of evidence collection in Syria particularly. Specifically, the Islamic State had begun to move into Aleppo by the time that Abdulsalam took his pictures. While that sounds tangential, human rights NGOs on the ground in Syria, including Human Rights Watch (HRW), which had been documenting evidence of potential war crimes in Syria, had been pulled out prior to the January 2014 barrel bomb attack.13 One of HRW’s researchers on the ground, Ole Solvang, recognized the potential importance of Abdulsalam’s removed evidence when he said, “if there ever is a trial, this is the stuff that could become important evidence.”14

Moreover, the same situation played out in a more general sense when, starting in September 2017, Facebook began removing images posted by Rohingya Muslims regarding their treatment in Myanmar. Rohingya activists, including the Irish-based Mohammed Rafique, reported that their Facebook accounts and pages were suspended together with the removal of content they posted depicting images and videos of torture and killings in Rohingya villages.15

As evidenced by the removal of significant evidence of potential crimes against humanity in both Syria and Myanmar, Facebook’s community guidelines establish a system through which pertinent data posted online is removed from access by the general public before ICC investigators have a chance to find it. Despite amending its guidelines in 2016 to allow violent or graphic content that is “newsworthy, significant, or important to the public interest,” the reporting structure, through which users individually flag content that they feel violates Facebook guidelines which are then reviewed by Facebook employees, still allows important potential evidence to slip through the cracks. Moreover, there is every potential that individuals who have a Facebook account and the desire to protect or support individuals committing war crimes can flag evidence against those perpetrators and have it removed, thus making it far more difficult to ever find the evidence in the first place. Therefore, Facebook’s current structure makes the potential for evidence to be removed before the ICC can open investigations (as the Myanmar evidence was removed in 2017, prior to the OTP opening a preliminary examination in 2018) all too real, especially as people likely still believe, as Abdulsalam did, that Facebook is an effective tool to memorialize data.

B. YouTube

In a similar vein to Facebook, YouTube, through its parent company Google, has also established a series of policies meant to safeguard its site from violence, graphic content, and actions taken out of hatred for a specific group. YouTube’s policy specifically states that it does not allow any footage, audio, or photos of the aftermath of war, the aftermath of a terrorist attack, sexual assaults, torture, protests, riots, or corpses with significant injuries like detached limbs.16 YouTube also removes content promoting violence or hatred against groups based on a series of group identifiers (e.g. race, religion, gender).17 Both policies require the removal of any offending content.

While the issues with Facebook’s structure for enforcing its community guidelines causes issues due to its user-driven nature, YouTube’s system of using artificial intelligence to comb through videos posted on its site that violates its community guidelines against extremist or disturbing content has yielded similar negative consequences for the preservation of evidence of war crimes posted online. In 2017, the same year that Facebook was removing data and suspending accounts associated with images depicting the violence against the Rohingya in Myanmar, YouTube’s artificial intelligence system shut down the pages of 900 groups documenting atrocities in Syria. Included in those groups whose information was removed from the site were organizations focusing on analyzing images coming out of conflict zones, organizations tracking the toll of air strikes in Iraq and Syria, and local Syrian media organizations like the Idlib Media Center, which was one of the last groups producing content from rebel-controlled territory at the time.

When evidence of crimes against humanity is posted on their site, Schapiro writes:

[S]ocial media companies have over and over again chosen to ignore, and, at times, disrupt the work of human rights groups scrambling to build cases against war criminals.18

This is borne out through both the Syrian and Burmese examples, which show that, whether intentional or not, online service providers are likely going to remove evidence of the types of crimes under the purview of the ICC posted by their users because of policies put in place to combat other disturbing global trends. Moreover, OSPs are not allowed to share content data, only metadata, which only includes general account information and the location from which the evidence was posted. The content of the post is sequestered in the company’s servers and becomes all the more difficult to access once it has been removed from the platform. Given the competing forces that pressure OSPs to remove content that could otherwise be used as evidence of crimes against humanity at trial in the ICC, and given the difficulty of accessing said content once it is removed, the ICC needs to develop means of cooperating with either the OSPs or the countries in which those OSPs are incorporated to ensure that critical data is not lost in the name of community safety online.

III. Working with National Governments to Regain Removed Online Evidence, Potential and Pitfalls

In order to recover data that has been removed under the community guidelines of any OSP once it has been removed, ICC investigators would have to gain access to the provider’s servers or have that provider send them the data from the server on which it is backed up. As the ICC at current does not have any agreements with major OSPs to protect information that could be valuable, and because the major OSPs are American firms (and the US is not a state party to the Rome Statute which mandates member state compliance with ICC investigations), it may have to negotiate with the national authorities holding jurisdiction over the location of the server in order to obtain the removed data. This section outlines what that process could look like and the drawbacks to the approach generally.

A. United States

In order to understand the regulatory framework the ICC would have to navigate in order to obtain American help in retaining evidence posted online and removed under OSP community guidelines, it is necessary to examine the Stored Communications Act (SCA), which is found in Section II of the Electronic Communications Privacy Act.19 Under the SCA, which limits governmental and institutional access to stored electronic records, US domestic law enforcement may request information through an order or after the issuance of a subpoena or a warrant, depending on the type of information requested.20 With regard to foreign or international law enforcement officials, the Act is silent.21 Importantly, there is a distinction made between private OSPs and OSPs that serve the public—public-facing OSPs, the category under which Facebook, YouTube, and the like fall, are always subject to the provisions of the SCA and compliance is mandatory with regard to its rules that generally prohibit the disclosure of content.22

As was stated above, the SCA is silent on the matter of foreign or international law enforcement in favor of only explicitly allowing domestic law enforcement to request court actions to view stored data. In addition, longstanding US legal tradition holds that foreign law enforcement actions on its soil must be announced to and accepted by the government, even when a Mutual Legal Assistance Treaty (MLAT) exists between it and the foreign country conducting the investigative action. Because it would appear that the ICC would have to get help from US entities when searching for digital evidence removed and sequestered to an OSP’s server, we next have to analyze whether the ICC can effectively ask US legal and governmental institutions for aid when US-based OSPs remove potentially pertinent evidence posted online.

The most prevalent law governing US –ICC interactions since its adoption in 2002 is the American Servicemembers’ Protection Act (ASPA). In general, the ASPA sets out rules prohibiting US support for the ICC, including specific provisions against responding to a cooperation request from the ICC, transmitting a letter rogatory from the ICC, and using certain funds to aid the Court.23 Moreover, the Act bars the ICC and its “agents” from investigating within the US.24 Though those provisions seem to wholly remove the prospect of any potential aid from US institutions for the ICC, let alone help from the US in order to gain access to the servers of one of its companies, a last minute amendment by Senators Chris Dodd and Patrick Leahy (the “Dodd Amendment”) opens up the possibility of US aid in certain scenarios. The amendment states in relevant part:

[N]othing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice […] foreign nationals accused of genocide, war crimes or crimes against humanity.25

In addition, there is the potential for a Presidential waiver in order for the ICC to involve itself in an investigation in the US, though none of these waivers have been given out as of yet.26 This provision, on its face, allows US entities to cooperate with ICC investigations of non-US citizens and, as argued in Access Denied, opens up two interesting options for the ICC to work directly with US institutions on investigations, including when the Court needs access to an American OSP’s servers as a result of the removal of evidence posted online due to the OSP’s community guidelines. Those options are:

1. a court-to-court approach through a request for judicial assistance from the US District Courts, and

2. a court-to-country based, diplomatic approach.27

1. Requests for Judicial Assistance from US District Courts

Under Section 1782 of Title 28 of the U.S. Code, a section outlining proper assistance to foreign and international tribunals, foreign tribunals are permitted to send a letter rogatory to the district court attached to the location of the individual or entity they are pursuing, but only that court.28 The district court then is empowered to order the production of documents (amongst other rights), including for the purpose of foreign criminal proceedings conducted prior to formal accusation.29 Though the plain meaning of the Statute, which states that “foreign or international tribunals” can utilize this direct-to-court letter rogatory, should effectively qualify the ICC to utilize Section 1782, further proof of the right of the ICC to use this method was outlined in the Supreme Court case Intel Corp. v. Advanced Micro Devices, Inc., which established that the Statute may be used by any “interested person” and that the proceedings in question need not be imminent as long as they are “within reasonable contemplation.”30 This would seem to indicate that the Statute is interpreted by the US court system as broadly applicable and would allow for inquiries to be made during the preliminary examination phase.

The most significant benefits of addressing the issue of evidence being posted online and removed through a direct appeal to the US district courts are the timeliness and legitimacy factors, as well as removing the specter of noncooperation from the executive branch. American courts have among the best infrastructure of any legal system in the world, so the process will be as quick as possible and the affirmation of the relevance of the ICC investigation by an American court could lend it additional credence. Moreover, courts will look at an issue through a mostly legal lens (ideally), and, as such, political and security concerns will play less of a role.31 However, content data is not accessible through Section 1782 and the investigator would have to pinpoint the location of the data so that he or she could bring suit in that court, making it difficult to follow through on in practice.32 If content data is unavailable through this channel, it does not provide sufficient coverage to be a viable option through which to retrieve removed data.

2. Request for Judicial Assistance through Diplomatic Channels

Another potential route for the ICC to work directly with the American Government is through diplomatic letters rogatory sent to the State Department. Under 28 U.S.C. § 1781, the State Department is empowered to transmit letters rogatory to the addressed tribunal in the United States from foreign entities.33 Those are executed based on treaty obligations or “international comity and courtesy” and sent through the Justice Department’s Office of International Affairs (OIA). From there, OIA can proceed through the § 1782 process alluded to above, or it can use 18 U.S.C. § 3512 (the Foreign Evidence Request Efficiency Act or FEREA), which allows for the appointment of an Assistant US Attorney to act as an investigative intermediary and collect the necessary evidence.34 In addition, the Statute allows a federal judge to issue orders for appearance of witnesses or production of documents, and even allows federal judges to issue warrants to aid in international criminal investigations.35 FEREA differs significantly from § 1782 in that the request for assistance does not have to be filed in the specific court of jurisdiction and it opens up the possibility of access to content data as well as the metadata accessible under § 1782.36

The potential benefits for the ICC in utilizing letters rogatory through the State Department and the OIA are that it could extend the reach to content data, which would make it an actually viable option for the retrieval of data stored on servers located in the United States but removed from public view by OSPs for violating community guidelines. Rights under FEREA would need to be held to extend to international tribunals, as the Statute addresses requests from “foreign authorities” (though it is reasonable to believe that it would be, as criminal investigatory bodies are included under that moniker),37 but the extension of the right of foreign tribunals to access stored content data would essentially nullify the issue at hand. Despite that, these letters rogatory depend more heavily on the cooperation and discretion of the American executive branch, which does not bode well for their success rate, and international requests involving the discretion of multiple American branches of government tend to take significant time to complete. While diplomatic letters rogatory could potentially provide a direct solution to recovering removed digital data from OSP servers located in the United States, it would be necessary to wait for the right American administration to begin the process, the accused could not be American or from a US strategic ally, and the data in question would have to be stored in the US. In a situation which satisfies all of the above-mentioned conditions, they could be valuable.

B. Ireland

The public-facing OSPs that are most frequently at risk of removing pertinent digital evidence of crimes against humanity are all multinational organizations that host servers in multiple countries, despite being founded in the US. Therefore, some relevant data that is removed will be stored on servers in other countries necessitating involvement with nations outside of the US, and moreover the ICC could potentially look to partner with a state party to the Rome Statute that hosts a significant number of OSP servers to retrieve evidence, as those state parties would be more amenable to cooperation with the ICC than non-state parties. Ireland, a state party to the Rome Statute, is the EMEA headquarters for both Google and Facebook, as well as a host of other major OSPs. In 2006, Ireland passed the International Criminal Court Act (ICCA), which, in part, allowed for the issuance of warrants to access records or documents when the ICC requests state cooperation.38 It also has a law on the books, the Criminal Justice Act of 2011 (CJA), which imposes liability on officers or directors of OSPs that, out of willful neglect or a more culpable mens rea, delete or remove evidence from online access.39 On its face, Ireland seems like a reasonable venue for success in obtaining evidence stored on OSP servers.

However, the Irish legal setup leaves some gaps that make it ineffectual for use in attempting to retrieve data removed from public view. The CJA, primarily, does not list violations falling within the jurisdiction of the ICC among the crimes for which online evidence must be preserved,40 so it would be difficult to utilize coordinated threats under that Statute. Moreover, when OSPs have removed data pertaining to ongoing or potential ICC investigations, the process was either automated or driven by user complaints, not done at the direction or due to the negligence of employees at either company. Finally, while it is helpful that the ICCA calls for information sharing between Ireland and the ICC, and that channel should be explored where necessary, it only provides access to data stored on those servers located in Ireland and would not prove persuasive in an American domestic setting or any other national domestic setup. The root issue is the same as it was in the US context: access through national legal or governmental means alone is not sufficient to cover the totality of data stored on multinational OSP servers.

C. Mutual Legal Assistance Treaties

Although attempting to find a backdoor to solidify access to evidence posted online and removed from public access but stored on OSP servers through a national legal setup was unsuccessful at addressing the problem of data lost from public view in its entirety, perhaps the ICC could utilize existing bilateral MLATs where possible to access data where it was previously unable to. While the ICC cannot enter into MLATs or make original requests through an MLAT regime, as it operates on the traditional treaty basis of reciprocity, many states parties to the Rome Treaty do have existing MLATs with the United States. The ICC can ask any state party to request information on its behalf, and the Dodd Amendment would most likely legitimize any requests by the ICC pertaining to investigations of non-US citizens despite a provision of the ASPA that forbids the use of MLAT requests for ICC purposes.41 This method is particularly appealing where applicable because most major OSPs have policies that allow for freer information sharing through MLAT requests. Google, in particular, will produce the same information to a foreign agency requesting through the MLAT procedure as it would to a requesting US agency.42 Therefore, much like the diplomatic letter rogatory approach, the MLAT procedure would provide the ICC with the entirety of the data it seeks if it is successful.

Much like the purely national means of accessing data that has been removed by OSPs, the MLAT approach leaves gaps in the access available to the ICC. Significantly, these requests carry the most weight when they come from a state that referred a situation to the ICC themselves and is gathering their own evidence for a similar domestic criminal proceeding.43 This considerably narrows the scope through which MLAT requests could reasonably be expected to produce the desired evidence. In addition, many MLATs require permission from the state receiving the request before any information can be used for purposes beyond the scope of the treaty,44 so even though the Dodd Amendment opens up US MLATs for use by the ICC when investigating non-US citizens, it can likely still exercise discretion in whether or not to comply with the request. Much like the purely national means of access to data stored on OSP servers after being removed from public view, access through MLATs is effective only insomuch as a particular scenario allows it. When a state party has an MLAT with the appropriate country, self-referred, and is also looking for the same data as the ICC, and that data has been removed by an OSP and is being stored on the servers of a non-state party, the MLAT process provides a possible, albeit time intensive and discretionary, route to recovering the necessary data. Otherwise, it is likely less effective.

On the whole, the existing legal systems that govern national and cooperative bilateral legal systems do provide potential openings through which the ICC can access OSP servers in which removed pieces of evidence still reside. Given a situation where the content itself is removed from public consumption, the most effective means of accessing that stored data would be if that data happens to be stored in a country that is a state party to the Rome Statute, like Ireland. Short of that, when dealing with US firms and US servers, the most effective existing legal means to access stored data would be through diplomatic letters rogatory, which provide the most wide-ranging possible access despite the diplomatic process being lengthy and not completely reliable. If, as is the case with the Syrian conflict, Americans are involved and data is removed, there is a massive gap in the ability of the ICC to access data stored on US servers, as the Dodd Amendment only allows ICC action within the US when it is needed to investigate a foreign national. In addition, these potential solutions fail to address the fundamental issue of the problem presented: when data is removed, unless it is copied and reproduced somewhere else, the public at large is not able to identify it. Essentially, the existing legal processes through which the ICC can access data stored on OSP servers are only effective where the Court knew about the existence of the data beforehand and can pinpoint its location and the server it would have been backed up to. The question remains, therefore, as to what actions the ICC can take to prevent the loss of data as a result of blanket community guidelines established by OSPs in the first place.

IV. Alternatives to the State-Based Model: Multilateral, Bilateral, and Unilateral Options for the ICC to Protect and Maintain Evidence Posted Online

This section outlines and examines two potential solutions to the issue of losing digital evidence of war crimes to wide reaching community guidelines that are enforced by user submission or automated process. The first potential solution is the option for the ICC to seek to enter bilateral cooperation agreements with OSPs that host a significant amount of data from areas of investigation. More pertinently, however, the other solution examines projects to create a database of verifiable, protected digital evidence of human rights violations and suggests a potential ICC-run forum for online evidence collection.

A. Bilateral Cooperation Agreements with Online Service Providers

While the ASPA limits the possible ICC cooperation US governmental entities can undertake, there are no specific barriers to direct cooperative agreements between the ICC and private corporations.45 Superficially, a bilateral cooperation agreement between the ICC and the OSPs with community policies that risk the removal of pertinent digital evidence of war crimes, could potentially designate backup servers for such evidence. That would be an incredibly significant step in terms of evidence collection, and there are no legal barriers to such an agreement.

That being said, company policy is entirely a matter of discretion, and as such any agreement would be purely voluntary and unreliable.46 While such an agreement is possible, it has never occurred mostly because in would involve direct negotiation with companies that have widely variant approaches and policies, that all behave differently, and that each take a myriad of factors beyond the simple push for justice into account when making decisions. In addition, direct relationships between the Court and certain OSPs could give rise to questions of arbitrariness.47 This option also, much like direct letters rogatory to US district courts, limits access to metadata as opposed to content data because content data cannot be legally disclosed.48 Once again, metadata, while valuable in other contexts, is not helpful when the content is what needs to be recovered. Therefore, while, in theory, bilateral agreements between ICC and OSPs would be the most effective means through which the Court could guarantee access to data, they are unlikely to actually come to fruition.

B. Establishment of a Private Entity to Collect and Store Evidence Posted Online

The final solution proposed by this comment is one that is purely a preventative step, as opposed to working to preserve and/or access data once it is removed. Multiple organizations have undertaken relatively successful Internet or app-based projects which are focused on collecting and storing digital evidence of multiple crimes against humanity. The International Bar Association (IBA), for example, created the eyeWitness to Atrocities project, a mobile app purely for the purpose of collecting and securing online video evidence of crimes against humanity in response to difficulty obtaining information regarding Sri Lankan troop actions against Tamil prisoners.49 eyeWitness, while effective for its purpose, does not provide a great model for an ICC for a few reasons. First, it was only meant to record and store video footage. It is also its own separate entity incorporated in England and Wales, which would open up potential national legal issues with regard to privacy and corporate protections. eyeWitness also partnered with LexisNexis for use of its servers.50 If the ICC follows a similar path, it would certainly be helpful in terms of cost and logistics, but that could open up issues about the location of servers. Attachment to an OSP for use of its servers or the creation of a separate, private entity would necessitate some form of perpetual agreement between the ICC and that entity—whether that is possible, let alone likely, is unclear.

Perhaps a more robust model to follow stems from Benetech, a firm that created the Martus technology, which was a free, open source, public application that was built to collect, store, backup, and analyze data from activists and journalists documenting potential human rights violations. Essentially, it was a cloud-based service that allowed those documenting evidence of crimes against humanity to store and protect that evidence.51 The technology was active for upwards of fifteen years and was only deactivated due to fears that it was out of date, not for lack of use or need.52 The main obstacles to the ICC undertaking a project like this would clearly be cost and logistical—the Court would have to set aside significant amounts of its budget to undertake a project like this on its own.

The major drawback, aside from cost, to working to establish an ICC specific or a Court-connected private database of digital evidence is that, generally, social media platforms have more name brand value.53 It would take significant time and advertising to grow the general knowledge of a new ICC program. If that is the main issue, however, and the upside is a database through which the ICC can avoid dealing with online service providers entirely, then the potential benefit far outstrips the cost needed to get there.

V. Conclusion and Policy Recommendation

In sum, the best possible solution for the ICC to combat the problem of OSP community guidelines indiscriminately removing from public view caches of potentially pertinent digital evidence would be to work to establish its own private forum for the uploading, safekeeping, and analysis of evidence of war crimes posted online. The best model for this would be the Martus model, but, if the Court does not have the time, funding, or logistical knowledge to establish its own application, an expansion of the IBA model with a perpetual cooperation agreement would be the next best option. While those are explored further, maintaining dialog with OSPs regarding the effect of their policies on the Court could potentially move certain firms, especially those like Facebook which have received copious negative publicity for its handling of such evidence on its site. But changing the policies of OSPs is not a guaranteed solution. Short of all of that, the best method for reaching evidence removed from public view but stored on OSP servers would be to go through states parties to the Rome Statute, or through diplomatic letters rogatory in the case of servers located in the United States.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Peggy O’Donnell, Alexa Koenig, Camille Crittenden & Eric Stover, UC Berkeley HRC, Beyond Reasonable Doubt: Using Scientific Evidence to Advance Prosecutions at the International Criminal Court (Jan. 7, 2013), available online. ↩

2. 2.

   Róisín Á Costello, International Criminal Law and the Role of Non-State Actors in Preserving Open Source Evidence, 7 Cambridge Int’l L.J. 268 (Dec. 1, 2018), paywall, doi. ↩

3. 3.

   Id. ↩

4. 4.

   Id. ↩

5. 5.

   Avi Asher-Schapiro, YouTube and Facebook are Removing Evidence of Atrocities, Jeopardizing Cases Against War Criminals, The Intercept, Nov. 2, 2017, available online. ↩

6. 6.

   ICC Approves Probe into Myanmar’s Alleged Crimes Against Rohingya, Al Jazeera, Nov. 14, 2019, available online. ↩

7. 7.

   Community Standards: Violence and Criminal Behavior, Facebook, available online (last visited May 29, 2020). ↩

8. 8.

   Community Standards: Safety, Facebook, available online (last visited May 29, 2020). ↩

9. 9.

   Id. ↩

10. 10.

    Asher-Schapiro, supra note 5. ↩

11. 11.

    Id. ↩

12. 12.

    Id. ↩

13. 13.

    Id. ↩

14. 14.

    Id. ↩

15. 15.

    Julia Carrie Wong, Michael Safi & Shaikh Azizur Rahman, Facebook Bans Rohingya Group’s Posts as Minority Faces “Ethnic Cleansing,” The Guardian, Sep. 20, 2017, available online. ↩

16. 16.

    Violent or Graphic Content Policies, YouTube, available online (last visited May 29, 2020). ↩

17. 17.

    Hate Speech Policy, YouTube, available online (last visited May 29, 2020). ↩

18. 18.

    Asher-Schapiro, supra note 5. ↩

19. 19.

    Tommy Umberg & Cherrie Warden, The 2013 Salzburg Workshop on Cyber Investigations: Digital Evidence and Investigatory Protocols, 11 DEESLR 128 (Nov. 21, 2014), available online, doi. ↩

20. 20.

    Id. ↩

21. 21.

    Id. ↩

22. 22.

    Id. ↩

23. 23.

    Alexa Koenig, Keith Hiatt & Khaled Alrabe, Access Denied? The International Criminal Court, Transnational Discovery, and The American Servicemembers Protection Act, 36 Berkeley J. Int’l L. 1 (May 2018), available online. ↩

24. 24.

    Id. ↩

25. 25.

    Id. ↩

26. 26.

    Id. ↩

27. 27.

    Id. ↩

28. 28.

    Id. ↩

29. 29.

    Id. ↩

30. 30.

    Id. ↩

31. 31.

    Id. ↩

32. 32.

    Id. ↩

33. 33.

    Id. ↩

34. 34.

    Id. ↩

35. 35.

    Id. ↩

36. 36.

    Id. ↩

37. 37.

    Id. ↩

38. 38.

    Costello, supra note 2. ↩

39. 39.

    Id. ↩

40. 40.

    Koenig, Hiatt & Alrabe, supra note 23. ↩

41. 41.

    Id. ↩

42. 42.

    Umberg & Warden, supra note 19. ↩

43. 43.

    Koenig, Hiatt & Alrabe, supra note 23. ↩

44. 44.

    Id. ↩

45. 45.

    Id. ↩

46. 46.

    Costello, supra note 2. ↩

47. 47.

    Koenig, Hiatt & Alrabe, supra note 23. ↩

48. 48.

    Id. ↩

49. 49.

    Costello, supra note 2. ↩

50. 50.

    Id. ↩

51. 51.

    Overview, Martus, available online (last visited May 29, 2020). ↩

52. 52.

    Collin Sullivan, Martus Sunset, Benetech (May 15, 2018), available online. ↩

53. 53.

    Costello, supra note 2. ↩