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New Technologies in International Criminal Investigations

  • Rebecca J. Hamilton (a1)

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My current research looks at ways in which people and institutions are using technology to build the evidentiary record in international criminal litigation. In particular, I focus on the collection of, and reliance on, what I call user-generated evidence. This is footage that an ordinary citizen—the user—records on their smartphone, in an effort to achieve legal accountability.

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References

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1 See Hamilton, Rebecca J., User-Generated Evidence, 57 Colum. J. Transnat'l L. (forthcoming, 2019).

2 I consciously refer to the ordinary citizen who records this footage as a (smartphone) “user” rather than as a “citizen” in order to not exclude users who are stateless or do not have citizenship in the locations where they are filming.

3 Number of Smartphone Users Worldwide from 2014 to 2020 (in Billions), Statista, at https://www.statista.com/statistics/330695/number-of-smartphone-users-worldwide.

4 The International, Impartial and Independent Mechanism (IIIIM), established by the UN General Assembly in relation to the conflict in Syria, is collating user-generated evidence for use in future prosecutions.

5 See Int'l Bar Ass'n, Eyewitness V2 English Subbed, Vimeo (June 15, 2017), at https://vimeo.com/221239794 (“As an initiative of the International Bar Association, we know the legal requirements for photos and videos to be admitted as evidence in court. Recognizing the immense risks eyewitnesses take we believe these efforts should never be in vain and potential evidence should always be admissible in a court of law.”); Harlo Holmes, Making Cameras Count, YouTube (Oct. 24, 2013), at https://www.youtube.com/watch?v=lzjoAdhAKWU (describing encryption and metadata features of the CameraV app that enable authentication).

6 See Robert Chesney & Danielle Citron, Deep Fakes: A Looming Crisis for National Security, Democracy and Privacy?, Lawfare (Feb. 21, 2018), at https://lawfareblog.com/deep-fakes-looming-crisis-national-security-democracy-and-privacy (describing DeepFakes as the “digital manipulation of sound, images, or video to impersonate someone or make it appear that a person did something—and to do so in a manner that is increasingly realistic, to the point that the unaided observer cannot detect the fake”).

7 See generally Morozov, Evgeny, To Save Everything Click Here: The Folly of Technological Solutionism (2013).

8 See, e.g., Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, Deposition of Witness 34-40 (Nov. 16, 2010), available at http://www.icc-cpi.int/iccdocs/doc/doc1298128.pdf.

9 See Int'l Criminal Court, Kenyatta Case, at https://www.icc-cpi.int/kenya/kenyatta (“Charges withdrawn due to insufficient evidence.”); Int'l Criminal Court, Ruto and Sang Case, at https://www.icc-cpi.int/kenya/rutosang.

10 See Hamilton, Rebecca, The ICC, the African Union, and the UN Security Council Narratives and Counter-narratives, in The Elgar Companion to the International Criminal Court (DeGuzman, Margaret & Oosterveld, Valerie eds., forthcoming 2019). Of course, this critique was simply the latest iteration of a long-standing critique of international law's imperialist tendencies. See, e.g., U.O. Umozurike, International Law and Colonialism in Africa, cited in Gathii, James T., Africa and the History of International Law, in Oxford Handbook of the History of International Law 420 (Fassbender, Bardo & Peters, Anne eds., 2013).

11 Sharp, Dustin N., Human Rights Fact-Finding and the Reproduction of Hierarchies, in The Transformation of Human Rights Fact-Finding 69, 78 (Alston, Philip & Knuckey, Sarah eds., 2016) (explaining how the term “extractive industry” is used by some critics of human rights fact-finding missions led by INGOs from the Global North).

12 See supra note 1.

13 See, e.g., Lassiter, G. Daniel, Illusory Causation in the Courtroom, 11 Current Directions Psychol. Sci. 204, 204 (2002) (citing to research done by Koffka in 1935, K. Koffka, Principles of Gestalt Psychology (1935), establishing the phenomenon of “illusory causation,” which leads us to attribute an unwarranted degree of causal influence to the object or person we happen to be looking at.); see also Kahan, Dan M., Hoffman, David A. & Braman, Donald, Whose Eyes Are You Going To Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 837 (2009).

14 See, e.g., Jalloh, Charles & DiBella, Amy, Equality of Arms in International Criminal Law: Continuing Challenges, in The Ashgate Research Companion to International Criminal Law-Critical Perspectives 251, 251–87 (Schabas, William, McDermott, Yvonne & Hayes, Niamh eds. 2013).

15 See, e.g., Todd Shields, Steven T. Dennis & Sarah Frier, Senators Tell Facebook CEO the Days of Self-Regulation May End, Bloomberg (Apr. 11, 2018).

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