Symposium on Open Source Investigation Labs: Balancing Digital Truths and Human Costs: Witnesses and Open-Source Evidence in Atrocity Trials – Opinio Juris

Report on the Integration of Open-Source Intelligence in International Criminal Justice and its Implications for Sustainable Development Goal 16

Introduction: OSINT, Justice, and the 2030 Agenda

The evidentiary framework of international criminal justice is being reshaped by Open-Source Intelligence (OSINT), representing a significant evolution in the prosecution of mass atrocity crimes. This development offers unprecedented opportunities to advance Sustainable Development Goal 16 (Peace, Justice and Strong Institutions) by enhancing accountability. However, the integration of OSINT also poses complex challenges to the protection of witnesses, whose rights are fundamental to ensuring the fair administration of justice as mandated by SDG Target 16.3 (promote the rule of law and ensure equal access to justice for all). This report analyzes the intersection of OSINT and witness protection, arguing that a rights-based approach is essential for leveraging technology to build effective, accountable, and inclusive institutions.

Evidentiary Evolution in Pursuit of Global Justice

The history of international criminal law demonstrates a clear progression in evidentiary strategies, reflecting an ongoing effort to strengthen justice mechanisms in line with SDG 16.

1. Phase One: Documentary Evidence. Post-World War II tribunals, notably at Nuremberg, prioritized documentary evidence to establish a credible and irrefutable record of mass atrocities.
2. Phase Two: The Witness-Centric Era. The ad hoc tribunals of the 1990s (ICTY, ICTR) and the International Criminal Court (ICC) shifted towards a reliance on witness testimony. This approach, while powerful, revealed significant obstacles to achieving justice.
3. Phase Three: The OSINT Revolution. The current phase is characterized by the exponential growth of digital open-source evidence, offering a new tool to combat impunity and strengthen international legal frameworks.

Challenges to Witness-Centric Justice and SDG 16

The reliance on witness testimony has presented significant challenges that undermine the objectives of SDG 16. These challenges highlight the institutional weaknesses that OSINT can potentially mitigate.

• Witness Security and Intimidation: Threats to witnesses and their families can lead to testimony withdrawal or fabrication, directly obstructing justice. Cases at the ICC, such as the Bemba and Others case (convictions for bribing witnesses) and the collapse of cases against Kenyan officials, illustrate how witness tampering cripples accountability efforts.
• State Cooperation as a Barrier: The ICC’s dependence on state cooperation for access to crime scenes and witnesses creates a “gatekeeper” problem. A lack of cooperation can halt prosecutions, impeding the functioning of international justice institutions (SDG Target 16.a).
• Psychological Trauma and Exploitation: Witnesses often experience significant psychological distress. Post-testimony neglect can lead to feelings of exploitation and social rejection, as seen in the case of Ogwen’s wives, demonstrating a failure to provide people-centered justice.

OSINT’s Potential to Strengthen Accountability and Justice Institutions

OSINT offers solutions to many of the traditional challenges in atrocity trials, thereby presenting an opportunity to accelerate progress towards SDG 16.

Enhancing Evidentiary Reliability

OSINT can be used to corroborate witness testimony, increasing the overall reliability of evidence. Research on the Hassan case shows OSINT is frequently used to support other evidence types. Conversely, as seen in the al-Werfalli case, witness testimony can be used to verify OSINT. This synergy enhances investigative efficiency and the quality of evidence presented in court.

Overcoming Systemic Obstacles

• Mitigating Memory and Trauma Issues: OSINT is not susceptible to the degradation of memory over time or the effects of trauma on recall, which can affect witness testimony in trials occurring decades after the crimes.
• Bypassing Access Restrictions: In conflicts where international investigators are denied physical access, such as in Syria, OSINT allows for the remote collection of evidence. This circumvents the “gatekeeper” role of uncooperative states and strengthens the capacity of international institutions to operate independently, a key component of SDG 16.

Human Rights Risks and the Threat to Inclusive Justice

While a powerful tool, the unregulated use of OSINT poses significant risks to the human rights of witnesses, potentially undermining the goal of building inclusive and people-centered justice systems.

Violation of Fundamental Rights

• Right to Privacy and Safety: OSINT can inadvertently reveal identifying information, exposing witnesses to danger and violating their right to privacy (enshrined in Article 17 of the ICCPR). The use of OSINT to generate lists of potential witnesses further amplifies these risks.
• Psychological Harm: The use of digital reconstructions can force survivors to relive traumatic events, causing lasting psychological damage and undermining their dignity and well-being.
• Dehumanization of Justice: An over-reliance on digital evidence risks overshadowing the human element of trials, which witnesses provide through nuanced, emotional testimony. This trend could detract from the restorative and truth-telling functions of justice, which are vital for sustainable peace (SDG 16).

The Normative Gap: A Challenge for Effective Institutions

The rapid integration of OSINT has outpaced the development of a corresponding normative framework to protect witnesses, revealing a critical gap in the architecture of international justice.

Inadequacy of Existing Protocols

• The Berkeley Protocol: While acknowledging the need to protect individuals from harm, its guidance on the specific rights of witnesses throughout all judicial stages is underdeveloped. Its principles on privacy and dignity are not explicitly linked to the unique vulnerabilities of witnesses.
• The Murad Code: This code offers a more survivor-centered model, particularly for survivors of conflict-related sexual violence, aligning with SDG 5 (Gender Equality). It champions informed consent, privacy, and a trauma-informed approach. However, its scope is limited and does not cover all witnesses in all types of atrocity crimes.

Recommendations: A Witness-Informed Framework for Achieving SDG 16

To close the normative gap and ensure that technological advancements serve the goals of justice and human rights, a witness-informed approach is imperative.

Reframing Witnesses as Rights-Holders

A fundamental shift is required: witnesses must be viewed not as mere sources of evidence, but as rights-holders whose dignity, privacy, and safety are paramount. This perspective, grounded in Article 68 of the Rome Statute, is essential for building the legitimate and inclusive justice systems envisioned by SDG 16.

Operationalizing a Rights-Based Approach

1. Develop a Comprehensive Protocol: A new protocol, or an expansion of the Berkeley and Murad Codes, is needed to address the rights of witnesses in the digital age. This framework must cover all stages of judicial proceedings.
2. Prioritize Informed Consent: Guidelines must ensure that witnesses have agency over how their data and testimony are used, balancing their rights with prosecutorial needs.
3. Integrate Post-Testimony Support: To prevent re-traumatization and social isolation, justice mechanisms must include robust psychosocial care and follow-up support for all witnesses.

Conclusion

The integration of OSINT into international criminal law presents a powerful opportunity to strengthen the fight against impunity and advance SDG 16. However, this technological progress must be accompanied by a robust commitment to protecting the human rights and dignity of witnesses. The future of effective and legitimate international justice depends on balancing technological innovation with a steadfast dedication to the human-centric principles at its core. Failing to protect the individuals the system is meant to serve would be a profound failure in the global pursuit of peace and justice.

Analysis of Sustainable Development Goals in the Article

1. Which SDGs are addressed or connected to the issues highlighted in the article?

1. SDG 16: Peace, Justice and Strong Institutions
   • The article’s core focus is on the evolution and challenges of international criminal justice, including the prosecution of mass atrocity crimes, war crimes, and crimes against humanity. It discusses the functioning of institutions like the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the need for robust legal frameworks to ensure accountability and protect the rights of individuals within the justice system. This directly aligns with the goal of promoting peaceful and inclusive societies, providing access to justice for all, and building effective, accountable institutions.
2. SDG 5: Gender Equality
   • The article specifically references the Murad Code, which is designed for “survivors of systematic and conflict-related sexual violence,” a crime that disproportionately affects women and girls. It also mentions the case of “Ogwen’s wives,” highlighting the unique vulnerabilities and post-testimony neglect faced by female witnesses. By advocating for a survivor-centered, trauma-informed approach that respects the dignity and rights of these individuals, the article connects to the goal of ending all forms of violence and discrimination against women and girls.

2. What specific targets under those SDGs can be identified based on the article’s content?

1. Under SDG 16: Peace, Justice and Strong Institutions
   • Target 16.1: Significantly reduce all forms of violence and related death rates everywhere.

     The article addresses this target by discussing the mechanisms for prosecuting “mass atrocity crimes,” “war crimes,” and “crimes against humanity.” The ultimate goal of international criminal justice is to hold perpetrators accountable, thereby deterring future violence and contributing to its reduction.

   • Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.

     This is the most central target. The article extensively discusses the challenges in providing justice, such as witness tampering (the Bemba case), witness withdrawal due to threats (the Kenyan cases), and the “normative gap” in legal frameworks for handling digital evidence (OSINT). The call to reframe witnesses as “rights-holders” and ensure their safety, dignity, and privacy is a direct call to improve access to justice and strengthen the rule of law at the international level.

   • Target 16.a: Strengthen relevant national institutions, including through international cooperation, to build capacity at all levels… to prevent violence and combat… crime.

     The article highlights the dependency of the ICC on “cooperation from States Parties and national governmental authorities,” who act as “gatekeepers” to evidence and witnesses. It also notes the use of OSINT at both “international and national levels.” The development of international standards like the Berkeley Protocol and Murad Code strengthens the capacity of both international and national bodies to investigate and prosecute these complex crimes effectively.

2. Under SDG 5: Gender Equality
   • Target 5.2: Eliminate all forms of violence against all women and girls in the public and private spheres, including… sexual and other types of exploitation.

     The article’s discussion of the Murad Code, which focuses on survivors of “conflict-related sexual violence,” directly relates to this target. By advocating for a survivor-centered approach that gives individuals control over their stories and ensures their protection, the article addresses the need for justice systems to effectively combat and respond to extreme forms of violence against women.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

1. For SDG Target 16.3 (Access to Justice):
   • Implied Indicator: Existence and implementation of legal protocols for witness protection in the digital age.

     The article points to a “normative gap” and suggests “establishing a new protocol” or expanding the Berkeley Protocol and Murad Code. Progress could be measured by the formal adoption and application of such guidelines by institutions like the ICC.

   • Implied Indicator: Rate of witness withdrawal in international criminal cases.

     The article cites the Kenyan cases where trials collapsed due to witness withdrawal. A decrease in this rate would suggest improved witness safety and confidence in the justice system.

   • Implied Indicator: Provision of post-testimony support for witnesses.

     The author advocates for “post-testimony support mechanisms, including psychosocial care.” The establishment and funding of such programs within international courts would be a clear indicator of a more witness-centric approach.

2. For SDG Target 5.2 (Violence Against Women):
   • Implied Indicator: Adoption of survivor-centered methodologies in judicial proceedings.

     The article praises the Murad Code for its “survivor-centred approach.” The extent to which its principles (e.g., informed consent, right to privacy, trauma-informed approach) are integrated into the standard procedures of international tribunals for cases of sexual violence would be a key indicator of progress.

4. Table of SDGs, Targets, and Indicators

Source: opiniojuris.org