By Tjitske Lingsma

This post originally appeared on the International Justice Tribune, an independent journalistic publication dedicated to justice issues around the world. 

The prosecution of the International Criminal Court (ICC) has been struggling with getting the evidence it needs from witnesses. But by focusing on collecting scientific evidence, it hopes to build stronger cases. Still, experts warn there is no quick fix.

Uhuru_Kenyatta_ICC
Kenyan President Uhuru Kenyatta during his ICC trial. Image courtesy of News-Kenya.com

In no less than seven of 22 ICC cases in which they ruled on evidence, judges found the evidence insufficient and worthy of dismissal altogether, thereby leaving the cases to collapse. The most dramatic was that against President Uhuru Kenyatta of Kenya, where prosecutors relied on witnesses who withdrew and/or lied, and had to deal with massive threats to witnesses.

Acknowledging judges’ wishes in its strategic plan for 2012-2015, however, the Office of the Prosecutor (OTP) pledges to improve “its capabilities to collect other forms of evidence in addition to witness statements, in particular scientific evidence.” This includes information gleaned from computers, phones, emails, internet postings, social media, financial data, photos, audio records, videos, GPS data from cellular devices and satellite images.

Caught on camera

In 2008, the OTP for the first time seized a large quantity of digital material, computers included, following the arrest of Jean-Pierre Bemba Gombo, the former DRC vice-president and militia leader charged with atrocious crimes in the Central African Republic. Scientific evidence was already used in court to great effect in the trial against Thomas Lubanga Dyilo, which started in 2009. A video showing the Congolese warlord encouraging his troops, some very young-looking, was key for his conviction for using child soldiers.

The OTP now faces “an explosive growth in its access to digital data”, reads its plan. That became clear when investigators started looking into Libya in 2011. “They were overwhelmed by the photos and videos that were being sent by NGOs,” says Eric Stover, faculty director of the Human Rights Center at UC Berkeley School of Law, which has co-hosted several workshops on scientific evidence and cooperation with third parties.

But obtaining court-admissible evidence “comes with many challenges”, Stover says, noting “state cooperation” in particular. Although some authorities might, for instance, agree to tap phones, other governments are less forthcoming. Kenya said it could not provide the many materials, including telecom and financial data, requested by prosecutors in the Kenyatta case; the OTP insists Kenya obstructed the investigation.

In such situations, non-state actors might be of help. Stover explains: “Scientific and digital information can pass over borders. The emails between a commander and subordinate can be sitting on a server in California, so one could seek [for example] Google’s or Yahoo’s cooperation. That is where the potential of this evidence lies.”

Linkage evidence

WITNESS Senior Attorney and Program Manager Kelly Matheson speaking about video as evidence on PBS. Check out the segment here.
WITNESS Senior Attorney and Program Manager Kelly Matheson speaking about video as evidence on PBS.

First responders play a vital role as well. Sometimes years before the ICC arrives, local NGOs document crime scenes, though they often lack expertise in collecting court-admissible evidence. That is precisely why the US-based NGO Witness offers video training to activists and citizens. “Every phone nowadays has a camera,” says Kelly Matheson, who leads her organization’s Video as Evidence programme.

She sees a lot of misunderstanding between human rights activists and the ICC. Some 90 percent of footage by first responders is ‘crime-based’ evidence of slain victims and destroyed towns. But to prove successful in court, prosecutors also needs ‘linkage’ evidence showing who the perpetrators are and how they connect to echelons higher up. “The problem is that most first responders don’t know what linkage evidence is,” Matheson says.

Such evidence could be obtained by, for instance, filming military equipment or taping public speeches by leaders. Matheson remembers a former trainee, a Middle Eastern activist, who filmed a bomb attack in a manner that showed he understood how important context was. After the explosion, he walked a street, came to a stop, took a few shots, continued walking and kept filming. “He mapped the whole bombing scene,” she recalls.

Triangulation 

Lately, the OTP has been upgrading its Scientific Response Unit to improve cyber and digital investigations. Giving a bigger picture of what took place, satellite imagery helped Stover and his colleagues locate mass graves associated with the 1995 Srebrenica massacre during forensic investigations for the Yugoslav tribunal.

The International Criminal Court in The Hague. Image courtesy of Hanhil via Wikipedia.
The International Criminal Court in The Hague. Image courtesy of Hanhil via Wikipedia.

Nevertheless, scientific evidence is no magic bullet. Challenges to its use include how to manage, select, verify, store and actually present it. “When you interview a witness you often get a sense of that person’s actual knowledge of the alleged crime,” explains Stover. “With scientific evidence, it takes extra work to ensure that it is verifiable and reliable. For example, when the OTP receives a photo it will need to ascertain who took the photo and whether it was manipulated in any way.” A case in point: judges in the case against Kenyan broadcaster Joshua Sang declined to admit into evidence recordings of his radio programme simply because they could not be adequately sourced.

Even “video alone is never going to convict a person”, says Matheson. Stover would agree. “Scientific evidence is not the be-all and end-all. To make the strongest case possible, you often need to triangulate scientific evidence to other testimonial and documentary evidence. In the end, it is best to leave no rock unturned,” he says.

A first likely case in which the OTP’s pledged commitment to scientific evidence will be tested is the new trial against Bemba, which is due to start soon, following the January appointment of judges to hear the case. Seized computers, phones and phone taps provide evidence allegedly showing that Bemba and a network, including two of his lawyers, bribed witnesses.

WITNESS’ Video as Evidence program aims to improve the reliability and effectiveness of video shot for human rights documentation and for the use as evidence in criminal and civil justice processes. To learn more, check out our training materials in the WITNESS Library and our Video as Evidence blog series.

Tjitske Lingsma is a freelance journalist based in The Netherlands and author of the book “All Rise: The High Ambitions of the International Criminal Court and the Harsh Reality” which was recently nominated for the BrussePrize in the category of best journalistic book in the Netherlands.  

Featured image: ICC Prosecutor Fatou Bensouda during the October 2014 status conferences concerning the status of cooperation between her office and Kenya (Photo: Flickr/ICC-CPI)

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