The law is a living construct; it develops in synch with society, bringing new challenges and new opportunities into the courtroom. Currently, the largest growth area for the law in general is undoubtedly the result of the ongoing evolution of digital technology. In one specific field, that of evidence gathering, the unique characteristics of international criminal law mean that the International Criminal Court (ICC) may be the leading forum for testing the greatest advances in the use of technology for truth-seeking purposes.
Most jurisdictions are founded upon the “best evidence” rule. This mandates that judicial agents, including police officers and those engaged in investigative work, gather evidence that is best able to establish the alleged facts. This calculus includes an assessment of the forms of evidence that are known to be reliable in court. Applying this rule to technology-related evidence poses unique questions, particularly when the application of the rules of procedure may be unclear for new technology.
For example, how might a defendant’s Facebook status at the time of a crime be preserved within the law’s chain of custody framework? New technology represents the “unknown” within a courtroom context.
The ICC’s position as an international tribunal makes even the collection of traditional evidence, such as documents or subpoenaed testimony unusual, because it does not have the enforcement powers that national courts have. The ICC has no basis to subpoena evidence and instead relies on a complex process of voluntary cooperation from the States that have accepted the court’s jurisdiction (which excludes three of the five permanent members of the UN Security Council and many countries in the Middle East, Asia, and Pacific regions). For the ICC, the “best evidence” rule is far more likely to involve evidence processed through technological means, particularly evidence generated online and available through open-source investigations. The ICC is therefore most likely to be the first major global jurisdiction to focus predominantly on the newest emerging forms of evidence, including technology-based, cyber, online, and digital evidence. National jurisdictions have not been faced with the same necessity of building legal frameworks for digital evidence, so the ICC is without the support of clear national jurisprudence to guide its operations. That leaves the ICC alone in facing a rising tide of new technology evidence.
As a former ICC investigator, I have been closely monitoring this phenomenon from my position with the Open Society Justice Initiative. The legal challenges became most apparent during the opening of the ICC investigations in Libya. The extent of citizen engagement in fact-finding was unprecedented, with an overwhelming deluge of potential evidence uploaded on YouTube, Twitter, and Facebook documenting the conflict in real time. The complexities of social media verification reached crisis mode as high-stake ICC allegations of mass rape, allegedly captured on video and then removed from YouTube, were questioned by the chairman of the UN Commission of Inquiry. It became obvious that it is essential to build ways of managing technology-generated digital evidence and to join the ICC in preparing for the tidal wave of new technology before it hit the ICC and flooded the courtroom with untested evidence.
At this juncture, I launched our “technology for truth” project within the Open Society Justice Initiative. There is incredible potential to facilitate the emerging trend of citizen-led processes, such as the citizen journalist movement, by analyzing the legal frameworks that could permit the use of material generated by the “citizen investigator” as evidence in court. As an indication of the power of the movement itself, I wrote a blog setting out the legal parameters for content selection for social media users. This concept was picked up by other organizations developing tools to help citizens use technology to document crimes, such as WITNESS and the European Journalism Center. This was the beginning of the community, which has now developed into a platform engaging thought leaders in the technology and human rights sectors, including the UN and Crisis Mappers. This community building and advocacy remains ongoing with our most recent planning focused on RightsCon 2015, where there will be sessions with the ICC addressing new online investigations challenges.
As part of the consolidation of the “technology for truth” community, International Justice Monitor is launching a series of blogs focusing on the use of technology for evidence. The conversation will feature key proponents of the technology for truth network. This is an open dialogue and an open invitation to all who may be interested in engaging. Please do reach out via the International Justice Monitor comments section or find me on Twitter @_AJCole. All blogs will searchable by the tag “technology for truth.” Over the course of 2015, the Justice Initiative will also be facilitating this conversation as part of our effort to compile guidelines regarding fact-finding documentation by citizens, which will be launched through a smartphone app being developed by our partners and other accessible technology, including SMS or web-based applications.
As a living construct, the law is unavoidably embedded within society’s real-time developments. The value of technology lies in the ability to build an immediately accessible platform for speaking truth to power through enabling citizens to seek accountability directly for themselves and shaping the legal frameworks applicable within their communities. The ICC and international criminal law represents a unique opportunity for citizens to own this legal process within the parameters of citizen-led technology, while working within technology infrastructure available within any given context. This is an important step in the trajectory of developing open societies towards self-governance models that are based on citizens’ ability to meaningfully contribute to justice processes.