20TH SESSION OF THE ASSEMBLY OF STATES PARTIES
14 December 2021
Name of the Event: Using digital technology for war crimes documentation and accountability (co-hosted by: eyewitness to Atrocities and Truth Hounds)
Report by: Pauline Pfaff, Junior Research Associate PILPG-NL
Highlights:
eyeWitness is an app developed to document war crimes and other Human Rights violations at a standard admissible at courts.
In addition to the app, eyeWitness supports its partners through ongoing trainings and continuous feedback.
Non-governmental organisations, including Truth Hounds, value the eyeWitness app as it increases the evidentiary value of their footage and the security of documenters during field missions based on build-in security features.
Speakers:
Dr. Kathleen Roberts, Co-Founder and Co-Director of Partners in Justice International;
Roman Avramenko, Executive Director of Truth Hounds;
Maria Mingo, Partnership Advisor at eyeWitness to Atrocities;
Anna Gallina, Analyst at eyeWitness to Atrocities
Summary of the Event:
The moderator, Dr. Kathleen Roberts, co-founder and co-director of Partners in Justice International, started the event by providing an overview of the increased relevance of digital evidence in jurisdictions worldwide, at both a domestic and international level. She highlighted that this trend was further accelerated by the spread of social media. Nonetheless, digital evidence gives rise to specific challenges regarding the verification and reliability of the content and thus their admissibility during judicial proceedings. Dr. Roberts introduced the eyeWitness app as a tool to assist in countering these challenges by ensuring that evidentiary standards, like the documentation of the chain of custody, are met. Subsequently she played a short video explaining the functions of eyeWitness.
Dr. Roberts then posed questions to each of the panelists. First, she turned to Maria Mingo, a partnership advisor at eyeWitness to Atrocities, asking about the organization's partnerships. Mingo elaborated that initially the app was intended to be used by any individual, which seeks to document human rights violations, but that soon they realized that targeted outreach programs addressing the concerns of potential end users are required. EyeWitness thus engages in collaborative partnerships with a range of actors, including journalists and non-governmental organizations, interested in recording footage at evidence quality. These partnerships include providing the app itself, as well as a range of additional support initiatives, such as ongoing trainings on the functions and use of the app to maximize the quality of the evidence collected, legal analysis, and continuous feedback on the recorded footage. All partnerships are based on a Memorandum of Understanding and the principle of confidentiality.
Next, Dr. Roberts addressed Roman Avramenko, the executive director of Truth Hounds, a civil society organization, which documents war crimes and crimes against humanity, particularly focusing on eastern Ukraine and Crimea. He spoke to how the eyeWitness app assists Truth Hounds in its activities. Truth Hounds undertakes field missions to conflict affected areas to collect witness and victims’ statements, footage recorded by witnesses, copies of relevant documents, as well as pictures and videos recordings of the damages caused by crimes. The eyeWitness app contributes to this work in two ways: (1) it allows for the corroboration of evidence by recording metadata, such as the location, time, and date of the footage; and (2) it lowers security risks for the documenters at security checkpoints when they are asked to show the content of their phones since the footage recorded with the app is stored in a separate, encrypted folder.
To follow up on this, Dr. Roberts yielded the word back to Mingo to further elaborate on the features the app offers for the reliability of the footage collected. Mingo pointed out that the app was not developed as a security tool, nonetheless, important security features are built into the app to mitigate risks arising during documentation efforts, as well as to best support their partners. For instance, a six digit code is required to access the encrypted folder containing the footage and, if the wrong code is entered, the regular picture library of the device is opened. The reliability of the recorded footage is ensured by features inhibiting their manipulation and the recording of metadata regarding the place, date, and time of collection. Thus, the chain of custody is recorded in accordance with evidentiary standards. The manipulation of content is inhibited by the generation of hash values and the requirement to first upload the footage to the encrypted, private eyeWitness server before being able to download it. The metadata of the images is generated based on multiple sources to ensure accuracy and to account for situations where one of them is not available. These are cell towers, wifi networks in proximity, and GPs. An internet connection is not required for the recording of footage or the generation of the metadata, it is only needed for the downloading of the app and uploading of content to the server. Mingo provided some examples of footage recorded via the app: environmental damage, mass graves, and the destruction of houses.
Next, Dr. Roberts asked Anna Gallina, an analyst at eyeWitness of Atrocities, what the organization does with the recorded footage. Gallina highlighted that eyeWitness collaborates with a number of partners and that large volumes of footage are uploaded. Not all evidence recorded is transferable as raw material to relevant prosecutorial authorities, thus eyeWitness works towards making the evidence accessible by categorizing, tagging, and analyzing it before including it in a user-friendly database. She underlined that any sharing of evidence is premised on the consent of the information provider. EyeWitness provides tailored support to its partners, including affidavits on the chain of custody, functioning as a link between the partner and judicial mechanisms, and mapping country- and situation-specific accountability avenues. At times, eyeWitness itself files dossiers and cases based on the footage it received from its partners.
Avramenko supplemented this by pointing out that his organization uses footage collected with the eyeWitness app to corroborate other evidence collected during field missions. He noted that Truth Hounds has submitted its evidence to both Ukrainian prosecutors and the International Criminal Court.
Dr. Roberts then turned to Gallina for an elaboration on the accountability avenues pursued by eyeWitness based on the evidence collected by Truth Hound’s and others in relation to the conflict in Ukraine. She remarked that eyeWitness has filed five submissions to three different justice mechanisms. For instance, eyeWitness, in collaboration with other non-governmental organizations, filed a submission to the United Nations Special Rapporteur on the Right to Housing in early 2021, urging the Rapporteur to pursue justice for violations of the right to adequate violations in the Donetsk area, Ukraine. The submission was supplemented by over 900 photographs of houses damaged or destroyed during the ongoing conflict. Gallina underlined that any imagery evidence needs to be corroborated with other details and facts and thus eyeWitness conducts thorough open-source investigations before filing submissions.
In his final comments before the floor was opened to questions, Avramenko reiterated the relevance of the eyeWitness app in mitigating security risks for documenters during field missions in conflict areas. He cautioned, however, that, albeit field missions are a good way to collect evidence, they are often undertaken days or months after the crimes occurred and thus at times visual evidence has already degraded or has been lost. He underlined that tools such as the eyeWitness app should be available to activists and civilians who are in a better position to conduct the initial documentation of crimes while they are ongoing or shortly after. Avramenko urged to increase outreach programs in affected communities to increase accountability.
When the floor was opened to questions, participants asked whether there was a cooperation between non-governmental organizations and Ukrainian prosecutors on the submission of communications to the International Criminal Court. Avramenko noted that, currently, two tracks are being pursued to ensure accountability for crimes committed in Ukraine – national level, in close cooperation with local prosecutors; and international level, before the International Criminal Court and under the principle of universal jurisdiction. While Truth Hounds submitted a number of communications to the International Criminal Court, only one regarding attacks on schools and other educational facilities was submitted in cooperation with Ukrainian prosecutors. Another question pertained to evidentiary standards and admissibility requirements in relation to digital evidence collected with the eyeWitness app. Gallina noted that, despite digital evidence emerging as a new type of evidence gaining increased relevance in the past 20-30 years, no specialized evidentiary standards are currently codified in law. Instead jurisprudence is developing the exact application of rules on admissibility to digital evidence. She added that it would be helpful to provide specialized training to judges, prosecutors, and other relevant actors to increase homogeneity in practice and increase the predictability of evidentiary value attributed to digital content. Gallina underlined that eyeWitness is not equipped for such activities and they could be undertaken by other non-governmental organizations. In addressing the final question on how to select the right tool for documentation of human rights abuses, Mingo highlighted that a multitude of such tools are available. The selection should be guided by the aims and objectives of the documentation efforts, as well as situational demands, such as security. Mingo underlined that what sets eyeWitness apart from other tools is that it records footage at the standard required before accountability mechanisms, the close cooperation with partners, and the provision of additional support, such as continuous training.