In international crimes, photos and videos can be powerful evidence to prove the criminal act and the context in which it was committed, the intent of the perpetrator, or the role played by the accused. They can corroborate other types of evidence such as witness statements, physical evidence, or contents of documents. They also help judges understand the magnitude of crimes. For core international crimes, photo and video evidence can offer unique insights, as professional investigators often do not have timely access to the crime scene. In these instances, documentation collected by members of the affected community and local civil society organizations — also referred to as frontline documenters or first responders — can play an essential role in helping build cases and prosecute international crimes.
There remains a significant lag in the widespread adoption of basic photography forensic techniques, and some frontline documenters struggle to capture relevant and reliable footage that can stand the test of a criminal court. Likewise, prosecution, defense, and judges still have a long road ahead to catch up on the technical knowledge they need to appropriately interrogate digital photo and video evidence. Ultimately, the utility of digital images as an instrument of justice will depend on good practices being disseminated and implemented across jurisdictions, from capture to the courtroom.
A paper recently published in the Journal of International Criminal Justice, as part of a special volume on technology and international justice, reflects on the landmark use of photo and video evidence in the Affaire Castro et Kizito. In 2018, a mobile military court in Kalehe, South Kivu, in Democratic Republic of Congo (DRC) tried two members of the Forces Démocratiques de Libération du Rwanda (FDLR) for crimes against humanity and war crimes. This case broke new ground not only in the DRC, but also globally. For the first time, a court of law admitted digital photography that had been captured with the eyeWitness app, a ready-for-court technology developed to streamline the documentation of international crimes and increase the likelihood that the digital images and videos it captures will be admissible in court. The paper walks through the process from the conceptualisation of the project to the sentencing hearing. Here, we share lessons on incorporating technology throughout the justice process based on the experience of the authors — who participated in the Affaire Castro et Kizito as international counsels, working closely with Congolese lawyers and human rights defenders.
First, it is essential that a documentation technology is fit-for-purpose. While there are many mobile documentation apps that help preserve metadata, many do so in a manner that may not facilitate the admission of the footage in court — for example, they might capture data points that are not accurate or consistent — failing to meet the expectations of the activists and documenters who may have invested time and resources, oftentimes at high risk. When evidence derived from a software is offered as evidence in a trial, any of the parties may request access to documents that explain how the technology works. Failing to provide this information may also jeopardize the admissibility of the evidence. Similarly, any software technology that is being deployed in a context where risks are elevated and the economic and material resources are limited should be able to operate on hardware that is easy to replace and maintain in case of loss or theft. Cybersecurity protocols for the safeguarding of evidence should also be under constant scrutiny and evolve as surveillance and hacking capabilities become more available to malicious actors.
With core international crimes, the arc of justice is long and the stakes are high. While the proliferation of technology solutions can provide new investigative opportunities, it is important that groups carefully evaluate whether the organization or company behind a documentation technology can support them in their justice journeys.
Second, even with technologies like eyeWitness, which was designed with situations like DRC in mind, there are limitations to what technology can deliver. If a piece of software is easy to use, there is a temptation to throw technology at the problem — even a sophisticated tool, however, may not be able to overcome deficiencies in the documentation process. While mobile documentation apps can increase the reliability of photos and videos, there is a gap between the evidence that prosecutors need for proving a crime, and the knowledge that some of the groups on the frontlines have in terms of capturing information that can be relevant to an investigation. A successful case will require the ability to transform this information into something that lawyers and prosecutors can use. For example, for international crimes prosecutors need to prove not only the underlying crime (e.g. murder) but also the contextual elements (e.g. for crimes against humanity they would need to establish the existence of a widespread or systematic attack against a civilian population).
Local documentation teams and legal actors can build the knowledge to incorporate technology in their investigations, develop their own evidence collection plans, analyse photo and video evidence, identify the most suitable legal strategy, and present the material in court. However, these partnerships are resource-intensive, and are still a rare occurrence in international criminal justice. Projects that include evidence gathering cannot rely exclusively on technology to collect material that is relevant and keep people and evidence away from harm. Even if a technology has low adoption costs for the local organization and can help streamline the documentation process, activists and lawyers still need to have the knowledge to conduct investigations that gather the evidence needed to prove a crime without putting themselves, victims, and communities at risk.
Third, to be sustainable, transnational consortiums need to be designed with the goal of ensuring local groups eventually become independent from international expertise. Often local actors are seen as providing contextual knowledge and access to the victims and survivors’ communities — and the legal expertise and technical skills are “parachuted” into the country from abroad (as international experts are generally not able to have a constant presence in the country where the evidence is being collected or the case heard). In Affaire Castro et Kizito, having advisors permanently in DRC was crucial to create meaningful collaboration among all the organizations during every step in the case-building process, and to ensure local lawyers and documentation teams were on the same footing as international organizations.
This constant interaction allowed the Congolese groups involved in the case to put into practice knowledge they developed during training sessions. Additionally, the short video prepared for court to help present key pieces of digital photo and video evidence was deliberately low-tech and low cost to promote practices that could be continued by the Congolese groups without access to expensive software or expertise. Approaching partnerships as a means for local actors to achieve independence from international organizations not only empowers local civil society, but most importantly, contributes to strengthening domestic criminal justice.
Fourth, organizations, bodies and other entities that fund documentation technologies bear responsibility for making the integration of technology into criminal justice investigations a responsible and sustainable practice. Before financing a new prototype, they should have a detailed understanding of why an existing technology is not fit-for-purpose, and how a new solution will help address gaps in the market. At present, and for the foreseeable future, the pool of potential users of documentation apps is small compared to other mobile apps. However, these users play a vital role in the investigation of human rights abuses and core international crimes, and their work can have a significant impact on the success or failure of a case. Funding the uptake of technologies for which proof of concept already exists can help build a larger user base and gain more feedback, in turn contributing to patching bugs in the code, catching any security vulnerabilities, and making the software more user friendly.
Funders can play an important role in coordinating technology development projects, or at least avoiding their duplication. In many instances, funds may be better directed towards adapting existing tools and ensuring they are interoperable with other software. For contexts where atrocities and serious human rights violations are ongoing, bringing in a new technology raises security and ethical questions. If a documentation technology has not been designed and tested with and for the teams who will be conducting the investigative work, the drawbacks of adoption — such as putting teams and the evidence they capture in peril because the app design does not meet the use case scenarios — can outweigh any potential benefits. To minimize any risks to people, evidence, and the pursuit of justice, funders should ensure technologies are developed by interdisciplinary teams with the necessary experience. Incorporating documentation technology into transitional justice processes, in particular criminal proceedings, requires specialized legal knowledge. Technology developers who intend for their products to be used in these specific contexts should have access to this expertise before, during and after the development of the tool, so legal requirements regarding the relevance, reliability and chain of custody of the evidence are integrated by design into the code and the software can be updated if needed.
Finally, incorporating a new technology into criminal proceedings brings up questions regarding the equality of arms and the right to a fair trial. Who has access to hardware and software that can capture information considered authentic and reliable by courts can impact how a case is built. Most important, who has access to the knowledge needed to query the evidence that it generates can impact how justice is delivered. With an increasing volume of digital evidence playing a role in the investigation of international crimes, the ability of the prosecution and the civil parties to explain the systems used in collecting, preserving, verifying, and curating visual evidence will have a central role in ensuring the defendant’s rights are protected. Similarly, judges will require at least some foundational knowledge to be able to interpret and interrogate the data being presented to them.
In sum, incorporating technology throughout the justice process does not follow a one-size fits all approach. The Affaire Castro et Kizito shows that while technology is not a panacea, it can play a crucial role in strengthening an evidentiary dossier when it is accompanied by dedicated legal and technical expertise. Photo and video evidence alone will never be enough to ensure a successful prosecution, but as this case has shown, it can be a crucial piece of the puzzle.
