Over the last decade, international criminal cases have increasingly relied on digital evidence. At the same time, new actors have emerged to support the identification and transmission of digital data to courts. Organizations such as Mnemonic and Bellingcat conduct digital collection, analysis, and documentation of atrocities across the globe and share that information with lawyers. International investigative teams, including those at the United Nations, are turning to artificial intelligence and machine learning to enhance their evidence collection and analysis capabilities. And the International Criminal Court’s Office of the Prosecutor partnered with SITU Research in 2016 and 2018 to create interactive digital platforms to present visual evidence of international crimes perpetrated by leaders of the al-Qaeda-linked Ansar Dine group in Mali.
In the ICC’s 2018 case against Al Hassan Ag Abdoul Aziz, the chief of the Islamic police during Timbuktu’s occupation by Jihadist groups in 2012 and 2013, the ICC Prosecutor employed digital technologies to generate evidence of rape and sexual slavery, in addition to other war crimes and crimes against humanity. Unfortunately, in June 2024, the ICC acquitted Al Hassan of all charges related to sexual and gender-based violence, but convicted him of multiple other crimes.
Although many were disappointed that the trial did not result in legal justice for the victims of gender-based violence in Mali, researchers and investigators who rely on open-source intelligence will likely continue to prioritize the online investigation of these crimes, and for good reason. From South Sudan to Myanmar to Ukraine, systematic and conflict-related sexual violence (SCRSV) remains prevalent in many of today’s conflicts and is frequently used by repressive regimes under investigation by both legal authorities and civil society organizations. But guidance on how to conduct digital investigations into SCRSV–and by extension, who should conduct them–remains underdeveloped, leaving a dangerous gap.
The “Guidance Gap”
Important work has been done in recent years to create standards for investigations into sexual and gender-based violence and for open-source evidence collection. For example, the Global Code of Conduct for Gathering and Using Information about Systematic and Conflict-Related Sexual Violence, known as the “Murad Code,” was published in 2022 as part of a project spearheaded by the Institute for International Criminal Investigations following a global consultative process. Named after Yazidi human rights activist Nadia Murad, it is a code of conduct that distills pre-existing minimum standards for documenting and investigating SCRSV. Meanwhile, the Berkeley Protocol on Digital Open Source Investigations, which was published around the same time by the Human Rights Center at the University of California, Berkeley and the Office of the United Nations High Commissioner for Human Rights, provides international standards for conducting open source investigations into violations of international human rights, humanitarian, and criminal law. Taken together, the Murad Code and the Berkeley Protocol provide the leading guidance in their respective areas. Practical guidance is still missing, however, on how these standards apply to their intersection, specifically digital investigations of sexual and gender-based violence, which present a unique set of challenges.
First, there is a lack of visibility online for crimes relating to sexual and gender-based violence, because there is a higher likelihood that such crimes are committed in private. There is also a lack of understanding of the sometimes subtle or coded ways that people communicate about sexual violence in digital spaces. In other words, sexual violence may be a “blind spot” for digital investigators, which could exacerbate existing challenges to securing justice for survivors of sexual violence, especially when investigations rely heavily or exclusively on open-source intelligence. Digital investigations of SCRSV also raise legal and ethical risks to the safety and wellbeing of virtually all relevant parties. Irresponsible investigations can threaten the physical safety of survivors and their families or communities, re-traumatize survivors, expose investigators to vicarious trauma, violate survivors’ human right to dignity by circulating sensitive content related to their attack, and even risk criminal sanctions against investigators and others.
An Opportunity to Shape New Guidance
The authors of this post have recently undertaken several projects to address these risks. In July 2024, we published an article (co-authored with Simone Lieban Levine) in the Journal of International Criminal Justice, which provides a framework for procuring consent to use digital open-source content in SCRSV investigations. The proposed framework breaks down the issue of consent into several important categories, including whether consent is needed given the nature of the content and its intended use, whose consent should be sought, who should procure that consent, and how it should be procured.
We also explore the different kinds of relevant open-source information. We differentiate between information that is 1) explicit, meaning the content depicts the sexual violence itself, 2) implicit, meaning it suggests the occurrence of sexual violence, such as by including the voice of a victim screaming or showing victims in sexualized positions or various states of undress, and 3) contextual, meaning the content suggests the possibility of sexual violence by showing the who, what, or where, such as content depicting children and pregnant women held in captivity. The variables for deciding if and how consent should be sought include the nature of the content, alongside its intended use and the identities of the content recorder, poster, and depicted individuals. Finally, we emphasize that, in accordance with existing best practices, any consent procured must be explicit, voluntary, specific, informed, and continuous.
Procuring consent is, however, but one of the many challenges that may emerge over the course of a digital investigation that is intended to find (or may inadvertently reveal) content depicting or suggesting sexual violence in conflict. To address these challenges, the Human Rights Center at UC Berkeley (including the authors of this post) collaborated with the Institute for International Criminal Investigations and an international group of experts to produce the pilot Open Source Practitioner’s Guide to the Murad Code.
This new guide, which was developed with input from dozens of practitioners–including SCRSV investigators, digital open-source investigators, survivor experts, child sexual exploitation material experts, and gender experts–spotlights the relevant principles outlined in the Murad Code that are relevant to each stage of a digital open-source investigator’s workflow.
The guide proved somewhat difficult to draft, given differences in best practices between the various experts and their respective fields. SCRSV investigators were concerned that the guide would unintentionally encourage digital investigators who have no specialized training in SCRSV to conduct such investigations, unknowingly putting survivors at further risk. SCRSV investigators were also understandably cautious about pushing to include digital information in case-building processes, out of a concern that such evidence would inadvertently shift judges’ expectations of what constitutes “proof” in SCRSV cases–for example, motivating judges to expect photos and videos to be included as evidence when they aren’t actually needed to meet an evidentiary threshold. Digital investigators were often eager to explore this intersection, but frequently lacked awareness of traditional methods of investigating SCRSV, as well as the visual, linguistic, and other ways in which SCRSV may be detected on and offline. In a nutshell, one community had little exposure to the ways in which digital investigations may be useful to their work, while the other had little background knowledge of SCRSV, hindering their ability to develop thoughtful online investigations.
The guide ultimately went through several iterations. Originally, the draft was formatted as a line by line “translation” of the Murad Code principles, indicating how digital investigators could implement the principles when conducting remote research. That draft became unwieldy in its length, however, and did not follow a digital investigator’s workflow, making it difficult to follow with respect to practical applications.
The team ultimately decided to shape the guide around the three phases of a digital investigation, as derived from the Berkeley Protocol: 1) preparation, 2) investigation, and 3) reporting, communication and other use. Following a series of warnings and cautions–including the risks that such investigations may create for survivors and their communities, and the particular care that is needed when handling content depicting children–discussion of the various Murad Code principles are presented in the order they would be applied in a real investigation. Topics range from the need for pre-emptive planning, to team selection and competencies, to strategies for identification of relevant materials, to principles relevant to sharing and otherwise using collected information.
By April 2025, a pilot English version of the guide will be posted to the Murad Code website for use by digital open-source researchers. Practitioners will have the opportunity to provide constructive feedback via an online form, which will be used to refine the guide. By autumn, all feedback will be assessed and–where appropriate–incorporated. The guide will then be translated into additional languages and formally launched.
A shared understanding that digital investigations are more ethical and effective when they are survivor-centered and trauma-informed prompted the creation of the guide. Such an approach recognizes the tremendous harm that can happen when investigators are unaware of the heightened legal, security, well-being, and ethical risks that can come with investigating such sensitive subjects, and the additional training and resources that investigators may need in order to properly conduct these investigations. It reflects the simultaneous needs to strengthen investigations of SCRSV by incorporating digital evidence, and to appropriately train digital investigators in how to find such material online, and in how to handle such material once it’s found.
We hope that this new resource will satisfy its mandate to help practitioners recognize and consider critical ethical and human rights issues, and take thoughtful, pre-emptive preparatory actions to avoid harming survivors and others, ultimately contributing to a safer and more effective international criminal justice.