International Criminal Investigations Research Articles

The intimate geopolitics of evidence gathering in war crime investigation in Ukraine

The Russian invasion of Ukraine illustrates the increasingly judicialized nature of international relations and geopolitics. By viewing aspects of the invasion as illegal – in particular through the identification of war crimes and crimes against humanity – the international response draws attention to the political geographies of international criminal investigation. Human rights groups, academics, journalists, and open-source forensic investigations have joined forces to collect, evaluate and analyze the violent nature of war crimes. While similar shifts in evidence gathering have been observed in the case of the Bosnia-Herzegovina war and the Assad regime's violence against Syrian citizens, the use of evidence-gathering technologies and evidence-securing institutions in the case of Ukraine is distinctive. In this scholarly intervention we seek to illustrate the intimate geopolitics of evidence gathering by zooming in on two different elements that shape evidential procedures in Ukraine: i) the blurring of civilian/military boundaries; and ii) the challenges of access. By evaluating what is new and what is similar to previous war sites, we suggest that these two areas reflect a geopolitics of evidence gathering, highlighting its global-local intimacies. Both these areas are well positioned to foster new research on the (geo)legal nature of war crimes in political geography and beyond.

Closing cases with open-source: Facilitating the use of user-generated open-source evidence in international criminal investigations through the creation of a standing investigative mechanism

Abstract Digital open-source evidence has become ubiquitous in the context of modern conflicts, leading to an evolution in investigative practices within the context of mass atrocity crimes and international criminal law. Despite its extensive promulgation, international criminal tribunals have had few opportunities to address the admissibility of user-generated open-source evidence. Through semi-structured interviews with experts and analyses of primary and secondary sources, this article examines the current standards and practices governing the use of user-generated open-source evidence. Current practices illuminate a number of gaps in the realm of digital open-source evidence in international criminal law. This article posits the establishment of a standing international, investigative mechanism as a solution to a need for increased standardization and co-ordination within the realm of user-generated open-source evidence. By standardizing the collection and use of such evidence, investigative bodies will be prepared to more effectively serve the international justice community.

Civilian Surveillance in the War in Ukraine: Mobilizing the Agency of the Observers of War

The war in Ukraine sees local and foreign civilians play active roles in the conflict, mainly through the participatory gathering and sharing of intelligence and open-source investigations of alleged human rights violations and war crimes. These surveillance practices seen in the war in Ukraine are not novel. Vigilantism campaigns have normalized since the War on Terror, while open-source information is increasingly recognized as a legitimate tool for human rights and international criminal justice investigation. Yet, their importance in the war in Ukraine highlights the agentic power of civilian surveillance. The proliferation of digital technologies empowers civilians to become inevitable actors in all spheres of politics, including war. However, across these practices, I argue that the Ukrainian government and its Western allies harness this agency as operational and narrative weapons. Patriotism and morality are pushed forward to mobilize individuals to participate in the war despite the risks that vigilantes and open-source investigators have to assume: risks of retaliation by Russian forces and lost independence.

Implementation of Trauma-informed Best Practices for International Criminal Investigations Conducted by the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD)

Implementation of Trauma-informed Best Practices for International Criminal Investigations Conducted by the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD)

International Law Enforcement, Judicial Cooperation and Criminal Investigations under the New EU and UK Cooperation Agreement: What Are the Implications for Data Sharing, Mutual Legal Assistance and Extradition?

International Law Enforcement, Judicial Cooperation and Criminal Investigations under the New EU and UK Cooperation Agreement: What Are the Implications for Data Sharing, Mutual Legal Assistance and Extradition?

The Potential and the Challenges of Digital Evidence in International Criminal Proceedings

Abstract Technological achievements such as mobile phones, computers and the World Wide Web have become an integral part of our lives, and societies and are indispensable to many. These new technologies, and information derived from them, have a great potential to support the fact-finding process in the fields of international criminal law and human rights. Therefore, digital information such as satellite imagery, communication data, and user generated content, for example, videos and photography are becoming essential tools for international criminal investigation. This article examines the characteristics of digital and technology derived evidence and the implications these characteristics have on their use in international criminal procedure. It will illustrate the value and the challenges regarding the inclusion of digital evi dence in international criminal procedure.

The Potential for Computer Vision to Advance Accountability in the Syrian Crisis

Abstract This article explores a novel approach to technology-enabled review of evidentiary material implemented by the United Nations International, Independent and Impartial Mechanism – Syria ('IIIM – Syria’ or ‘the Mechanism’). The Mechanism’s objective in pursuing automation is to significantly accelerate the speed and improve the consistency of review and analysis of large, digitized documentary data sets used in the pursuit of accountability for crimes committed in Syria. This approach represents one of the first uses of Computer Vision applied to documentary evidence in the field of international criminal investigations and is a tangible example of public–private cooperation developing meaningful technology-based upon modern best practices. The article first discusses why technological innovation in investigative analysis is necessary in relation to the Syrian conflict. Next, the article reviews the approach adopted by IIIM – Syria towards applying existing and novel technology in the processing, preservation, and analysis of evidentiary material. Specifically, it explores how the organization executed a novel approach to technology-enabled review of evidentiary material through the application of Computer Vision techniques designed by forensic and eDiscovery experts. Finally, the article explores the wider investigative possibilities presented by the use of Computer Vision as a technique for analytical review.

Power and Privilege

Abstract Digital open source information — including the videos and photographs that people post to social media and other publicly accessible platforms — is increasingly valued as a critical source of evidence. While investigators have repeatedly established the value of open source information for researching a range of crimes, there is a subset of crimes that investigators have struggled to address with digital open sources — namely, sexual violence. In this article, we report on findings pulled from our interviews with international investigators and gender experts with regards to the perceived strengths and weaknesses of integrating digital open source information into international criminal investigations of sexual violence. More specifically, we elaborate on three insights into how open source investigations may be refined to better respect and protect the interests of survivors: by considering contextual issues related to ethics, power, and privilege, including the identity of the investigator and of the victims; by integrating a gender analysis and an intersectional analysis into online investigation planning; and by being thoughtful about consent, privacy, trauma and control — including who determines what happens with open source information and how such information is used in courts. We conclude with a discussion of what is needed to strengthen the efficacy and ethics of sexual violence investigations through the use of digital open sources.

Open Source Information’s Blind Spot

Abstract Digital open source information has been heralded for its democratizing potential, insofar as it allows access to a much broader range of sources and voices than would normally be consulted through traditional methods of information gathering for international criminal investigations. It also helps to overcome some of the physical access barriers that are commonplace in international criminal investigations. At a time when the use of digital open source information is becoming more widespread, this article warns of the cognitive and technical biases that can impact upon two key stages of an investigation: finding relevant information and analysing that information. At the information-gathering stage, there are particular crimes, regions and groups of people whose experiences are more likely to be overlooked or hidden in digital open source investigations. When it comes to analysing digital open source information, there is a danger that cognitive and technical biases may influence which information is deemed most relevant and useful to an international criminal investigation, and how that information is interpreted. This article proposes some steps that can be taken to mitigate these risks.

The Challenge of Biases in Machine Learning Models and Big Data Analytics for International Criminal Investigations

Advances in mobile phone technology and social media have created a world where the volume of information generated and shared is outpacing the ability of humans to review and use that data. Machine learning (ML) models and big data analytical tools have the power to ease that burden by making sense of that information and providing insights that might not otherwise exist. In the context of international criminal and human rights law, ML is being used for a variety of purposes, including to uncover mass graves in Mexico, find evidence of homes and schools destroyed in Darfur, detect fake videos and doctored evidence, predict the outcome of European Court of Human Rights’ judicial hearings and gather evidence of war crimes in Syria. ML models are also increasingly being incorporated by States into weapon systems to better enable targeting systems to distinguish between civilians, allied soldiers and enemy combatants or even inform decision-making for military attacks. The same technology, however, also comes with significant risks. ML models and big data analytics are highly susceptible to common human biases. Those biases have the potential of reinforcing and even accelerating existing racial, political or gender inequalities. They can also paint a misleading and distorted picture of the facts on the ground. This article canvasses how common human biases can impact ML models and big data analytics. This article also examines what legal implications these biases can have under international criminal law and international humanitarian law.

The Counter-Hegemonic Turn to ‘Entrepreneurial Justice’ in International Criminal Investigations and Prosecutions Relating to the Crimes Committed in Syria and Eastern Ukraine

The Counter-Hegemonic Turn to ‘Entrepreneurial Justice’ in International Criminal Investigations and Prosecutions Relating to the Crimes Committed in Syria and Eastern Ukraine

Re-Conceptualising Cross-Disciplinary Expertise in International Criminal Investigations: An STS Perspective

Re-Conceptualising Cross-Disciplinary Expertise in International Criminal Investigations: An STS Perspective

Using Mobile Phone Data to Investigate Mass Atrocities and the Human Rights Considerations

There is no greater representation of today’s digital age than the advent and spread of mobile phones. Mobile phones have become a ubiquitous tool in today’s more inter-connected world. They are how most of us communicate, how we socialize, how we share photos and videos, and how we generally interact with others. They are with us almost everywhere we go and in almost everything that we do, from banking, to shopping, to family interactions. For these same reasons, mobile phones have become a treasure-trove of information for investigations into mass atrocities. Using mobile phone data, investigators and human rights activists can track a user’s movements and telephone calls, develop hierarchical and social networks, and even collect information relating to the person’s intimate and personal life—all of which can turn into vital direct or circumstantial proof of crimes. This Article examines how mobile phone data has transformed international criminal investigations and prosecutions, including how such data has been used for evidential and investigative papers. This Article also looks at the other side of the issue, namely the human rights limitations to the collection and use of such information, including open legal issues regarding the international human right to privacy.

Interpreter-Assisted Interviews: Examining Investigators’ and Interpreters’ Views on Their Practice

The investigative interviewing of victims, witnesses and suspects is one of the most frequent and important tasks undertaken by those conducting law enforcement investigations. Over the past 20 years or so, there has been a substantial growth in the amount of research examining the practice. Nonetheless, little research has been conducted into those interviews where an interpreter is increasingly present. Using a self-administered questionnaire, the present study examined the beliefs of 66 investigators and 40 interpreters in the context of international criminal investigations, concerning certain key tasks in such interpreter-assisted interviews. It was regularly found that there was not always a consensus of opinion either within or between these two groups of professionals concerning whether (when participating in investigative interviews) (1) they prepared jointly with each other; (2) interpreters assisted (or otherwise) with rapport building; (3) interpreters could interpret accurately; and (4) interpreter interventions were disruptive or not. Given such divisions of opinion, our findings tend to suggest that there is a lack of clarity as to the role of interpreters and, indeed, only personalised views as to what is best practice. The implications of our findings are discussed, and recommendations are made to enable practice enhancement.

AI, Machine Learning, and International Criminal Investigations: The Lessons From Forensic Science

The evolving field of machine learning and artificial intelligence is frequently presented as a positively disruptive branch of data science whose expansion allows for improvements in the speed, efficiency, and reliability of decision-making, and whose potential is impacting across diverse zones of human activity. A particular focus for development is within the criminal justice sector, and more particularly the field of international criminal justice, where AI is presented as a means to filter evidence from digital media, to perform visual analyses of satellite data, or to conduct textual analyses of judicial reporting datasets. Nonetheless, for all of its myriad potentials, the deployment of forensic machine learning and AI may also generate seemingly insoluble challenges. The critical discourse attendant upon the expansion of automated decision-making, and its social and legal consequences, resolves around two interpenetrating issues; specifically, algorithmic bias, and algorithmic opacity, the latter phenomena being the focus of this study. It is posited that the seemingly intractable evidential challenges associated with the introduction of opaque computational machine learning algorithms, though global in nature, are neither novel nor unfamiliar. Indeed, throughout the past decade and across a multitude of jurisdictions, criminal justice systems have been required to respond to the implementation of opaque forensic algorithms, particularly in relation to complex DNA mixture analysis. Therefore, with the objective of highlighting the potential avenues of challenge which may follow from the introduction of forensic AI, this study focusses on the prior experience of litigating, and regulating, probabilistic genotyping algorithms within the forensic science and criminal justice fields. Crucially, the study proposes that machine learning opacity constitutes an enhanced form of algorithmic opacity. Therefore, the challenges to rational fact-finding generated through the use of probabilistic genotyping software may be encountered anew, and exacerbated, through the introduction of forensic AI. In anticipating these challenges, the paper explores the distinct categories of opacity, and suggests collaborative solutions which may empower contemporary legal academics – and both legal and forensic practitioners - to set more rigorous and usable standards. The paper concludes by considering the ways in which academics, forensic scientists, and legal practitioners, particularly those working in the field of international criminal justice, might re-conceptualize these opaque technologies, opening a new field of critique and analysis. Using findings from case analyses, overarching regulatory guidance, and data drawn from empirical research interviews, this article addresses the validity, transparency, and interpretability problems, leading to a comprehensive assessment of the current challenges facing the introduction of forensic AI. It builds upon work undertaken at the Nuffield Council on Bioethics Horizon Scanning Workshop: The future of science in crime and security (5th July 2019, London).

Demonstrating reliability through transparency: A scientific validity framework to assist scientists and lawyers in criminal proceedings

In recent decades, forensic science evidence has come to play an increasingly significant role in criminal proceedings. However, the ability of non-scientists (lay-persons, including lawyers and judges) within criminal justice systems to recognise and resolve issues of validity and reliability relating to expert opinion evidence has not maintained pace with the need to do so. Despite international scrutiny from scientists, statisticians, governments and those involved in law reform, the parameters of a) different forensic disciplines and b) some case specific interpretations, remain elusive to some legal practitioners and judges. It is therefore essential that within the context of national, and increasingly international and transnational criminal investigations, forensic science experts convey the evidential value of the scientific findings in a manner that is understandable to, and useable by all.To assist, this paper first identifies the organisational structures necessary to scaffold and support the delivery of reliable expert opinion evidence. This is followed by a format for transparently reporting the reasoning and the scientific validity underpinning the expert’s evidence within their report: a tripartite Scientific Validity Framework. This framework is comprised of (i) foundational validity, (ii) applied validity and (iii) the new concept of evaluative validity. Such a framework, because of its underlying scientific principles, is applicable to expert reports in any jurisdiction and is complementary to different national approaches. That is because utilising this framework could ensure that experts can, and do, demonstrate that their case-specific opinion is reliable and alert the legal profession to the expert’s reasoning process and any limitations in the scientific validity underpinning the opinion.

Justice in an Ever-Evolving (Digital) World – A Reflection on the Annual International Bar Association’s War Crimes Conference

This opinion article gives an overview of discussions on the future of international criminal justice during the International Bar Association’s Annual War Crimes Conference, held in The Hague on April 13th, 2019. The topics set out focus on international criminal investigations, more specifically on who is investigating (which actors) and how is being investigated. This article first discusses corporations and international crimes and highlights the different ways in which corporations can be involved in atrocities. Then, the role of private (non-state) actors is discussed, more notably the role of civil society and private investigators. The third topic relates to UN investigative mechanisms, namely those for Iraq, Myanmar and Syria. Each section starts with an overview of panellists’ presentations and ends with the author’s own reflections. The article ends with a general overview on the future of international criminal investigations and additional reflections and suggestions for practice and further research.

The International Criminal Investigation of the Syrian Conflict

The International Criminal Investigation of the Syrian Conflict

Legal Issues Related to Combating Cybercrime: Experience of the Republic of Kazakhstan

This paper deals with the legal issues related to combating cybercrime in the global information and communication networks through comparative analysis of relevant legislation of the Republic of Kazakhstan and Western European countries. The purpose of this research is to identify the specific features of present cybercrime, to develop a conceptual framework, to specify new forms of cybercrime and to find the main directions in combating cybercrime. The research methodology was based on dialectical, comparative legal, sociological, system-structural and statistical methods, as well as on social experiment. The study gave the possibility to disclose specific features of cybercrime, provided a universal definition of cybercrime, which can be used in international conventions as well as in international criminal investigation. The study highlighted two new types of cybercrime - cyber-terrorism and identity theft with the view of committing crimes, which could be included in the Convention on Cybercrime. The authors of this study developed a universal conceptual framework that can be used in international legal instruments and international cooperation in combating cybercrime and formed a unified approach to address some legal issues related to cybercrime in the global information and communication networks.

User-Generated Evidence

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users without such protections.