The International Criminal Court at RightsCon: Upping its Cyber Game

Digital documentation is crucial, both to alleviate the burden of testimony on survivors and to corroborate witness evidence in court.
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When tech innovators and human rights activists mobilized in San Francisco last week to discuss how modern tools can be better used to respond to global human rights violations, a critical partner came to the table for the first time: the International Criminal Court.

The Human Rights Center at the University of California, Berkeley, School of Law hosted the ICC delegation at RightsCon so that the group could share how the ICC investigates and prosecutes accused war criminals and explore how tech-savvy human rights investigators can help bring the world's most egregious human rights violators to justice.

At stake was nothing less than how successful the global community can become at stopping and ensuring the accountability of perpetrators of war crimes, genocide and crimes against humanity.

The ICC, established by the Rome Statute in 2002, is an international institution charged with investigating and prosecuting those accused of the most grave crimes. Current cases range from that of Congo's Germain Katanga -- who was convicted as an accessory to war crimes and crimes against humanity last week -- to the ongoing search for the notorious Joseph Kony. As of today, 122 states have signed on to the Rome Statute. The U.S. is not among them.

As ICC investigators at RightsCon explained, the ICC is a relatively small organization with a huge mandate, and is currently working in eight countries. Because of its small size and limited budget, the ICC cannot fulfill its mandate alone.

Historically -- and up until very recently -- those plotting war crimes left a trail of ink and paper. The victors in war could gather a mountain of documents, including military logs and battle plans, to present in court -- as was done with the Nuremburg Trials following World War II.

Today, evidence is just as likely to be digital and stored on cell phones and laptops, captured in email exchanges, videos and screenshots. The data is so vast that, ironically, it's illusive. It's everywhere and nowhere.

ICC investigators spoke frankly at RightsCon, explaining that the organization is limited in its technical capacity -- analogizing that the ICC is using an outdated flip phone while human rights investigators and perpetrators are using smart phones. The ICC's technological know-how -- and the resources available to keep abreast of changing technologies -- must be improved.

RightsCon enabled a critical conversation about how technology can be used by the ICC, NGOs and other possible partners to document human rights violations in court-admissible ways. Such digital documentation is crucial, both to alleviate the burden of testimony on survivors and to corroborate witness evidence in court.

The Human Rights Center helped jumpstart this discussion with last fall's Salzburg Workshop on Improving War Crimes Investigations, an international meeting held in Austria, and the resulting report "Digital Fingerprints: Using Electronic Evidence to Advance Prosecutions at the International Criminal Court," which recommended the ICC's participation at RightsCon. A second Salzburg Workshop in September 2014 will continue the conversation and provide a forum to establish protocols so that non-government organizations can provide information to the court in ways that are truly effective at supporting prosecutions.

"Digital Fingerprints" also outlines key challenges that the ICC faces in stepping up its tech capacity. One of those challenges is funding. Digital investigations require expert staff as well as up-to-date software and frequent training. A cyber investigator joined the ICC's staff last year, but his team desperately needs to expand.

The ICC is already stretched thin, investigating atrocities across a vast geographic area and diverse contexts. Yet their caseload is only expected to grow. Because security for victims and witnesses is of utmost importance -- and conducting investigations in any country comes with diplomatic sensitivities -- a great deal of care must be taken in any investigations. Cyber investigations are no different.

"Digital Fingerprints" acknowledges these challenges, recommending that the Association of States' Parties (the signors of the Rome Statute who contribute to the ICC) step up to provide sufficient funding to ensure the ICC can develop its internal cyber-investigations capacity.

The report also recommends that the ICC develop stronger partnerships with human rights actors on the ground -- the very people who are often in a position to gather digital evidence of crimes as they occur or immediately after they take place.

Last week's RightsCon provided an incredible opportunity to seed and cultivate connections between NGOs and the ICC, to speak openly about the importance and evolution of cyber investigations, and to support the world's court in embracing the digital age.

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