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  • Vaishnavi Chaudhry

The Berkeley Protocol: A Potential Game Changer for Open-Source Investigations?

This article is authored by Vaishnavi Chaudhry, a Third Year student of Law at Rajiv Gandhi National University of Law, Punjab.


Overview

In the past few years, there has been an increased focus on using digital open-source intelligence (OSINT) for investigating war crimes. This is primarily because OSINT has made it easier for human rights investigators to identify, analyse and corroborate the extent of human rights violations. Though social media platforms such as Facebook, YouTube, and Twitter etc are used as mediums to circulate evidence of human rights violations in the forms of images and videos, it has been quite difficult to use such evidence for legal purposes.

Against this background, it is critical to evaluate the role of open-source evidence from an international law and human rights perspective. In light of the same, this short essay will focus on the use of OSINT in conflict zones. It will also discuss the legal framework that has been laid down by the Berkeley Protocol on Digital Open-Source Investigation.

OSI has played a critical role in determining the extent of human rights violations across different conflict zones. Though it has been used as a source of evidence for a relatively short period of time, its contribution in international criminal investigations and human rights violations has been significant. OSINT has proved to be instrumental in conducting investigations because it allows investigators to access those conflict zones that they otherwise would not be able to access due to security, diplomatic or logistical factors. In addition, civilians are also made a part of the investigation as they become primary sources of such evidence. In order to understand the importance of OSINT in conflict zones, its use in the Syrian Conflict has been discussed below-


Open-Source Evidence and the Syrian Conflict

Since the Syrian conflict began in 2011, the government has actively tried to prevent human rights groups from entering the country to investigate the crimes that were being committed against its civilians. Against this background, Syrian citizens resorted to using social media so as to highlight the cruel treatment that was being meted out to them by the Assad led government. Human rights organisations have largely depended on digital documentation to investigate human rights violations in Syria. One example would be the use of open-source investigation to document the March 2017 chemical weapons strikes on Al-Lataminah in Syria. This investigation was conducted by UC Berkeley’s Human Rights Investigations Lab in collaboration with the Syrian Archive. The Syrian Archive has been actively working to collect evidence about the human rights violations taking place in Syria. It has collected several verified videos of the chemical weapons attack, thus, establishing Syria’s violation of international law.

It is important to note here that this use of digital technology has not just remained restricted to the Syrian Conflict. In 2017, a fact-finding commission was set up by the UN to investigate the large-scale human rights violations that were being committed against the Rohingya Muslims in the Rakhine State of Myanmar. However, the commission was denied permission to enter the country and subsequently, it had to rely upon digital OSINT to carry out its investigation. Similarly, open source investigation has been used in other conflict zones such as Libya, Cameroon and Yemen. These instances highlight the growing reliance of human rights groups on digital evidence. However, using such evidence to establish a state’s liability for perpetrating human rights atrocities against its citizens has proved to be difficult so far.

The release of the Berkeley Protocol on Digital Open Source Investigation is bound to change that. This manual has been prepared in collaboration with the United Nations Human Rights Office of High Commissioner with the view of utilizing open source intelligence with respect to investigating war crimes and other human rights violations in conflict zones. For the past few years, a need for such a protocol was felt due to the lack of any legal standard to determine the validity of social media evidence in legal proceedings before international organisations such as the International Criminal Court.

While there is a lack of jurisprudence surrounding the use of Open Source Evidence in International Criminal Trials, there are a few relevant cases on the issue such as the Ahmad Al Faqi Al Mahdi Case. In this case, the accused was a former member of an armed group called Ansar Dine. He was accused of having a hand in the destruction of nine mausoleums in Timbuktu. To prove his guilt, the OTP resorted to the use of open-source evidence that was collected in collaboration with open-source investigators and civil society groups. Open-source videos, photos and geospatial information were used to demonstrate the destruction that took place in Timbuktu before ICC judges.

This case is remarkable in the sense that it allowed the OTP to utilise OSI evidence that was sourced, authenticated and analysed in such a way that it allowed her to establish Al Mahdi’s guilt. However, in a large number of cases, the authentication or verification of the OSINT & its subsequent admissibility continues to remain a challenge. The Berkeley Protocol seeks to address this challenge.


Chapter III of the Berkeley Protocol

The introduction of the Berkeley protocol acknowledges the role played by technology and particularly social media in increasing the circulation of open-source data or evidence. Subsequently, it highlights the need for a comprehensive and universal guide for aiding international criminal and human rights investigators in their work. In other words, the protocol lays down a uniform set of standards for effective investigation of violation of internationalcriminal law, international human rights law and international human rights law. This encompasses human rights violations and international criminal law violation such as war crimes, crimes against humanity, genocide etc.

Chapter III of the protocol lays down the legal framework pertaining to the process of open-source investigation. Thischapter seeks to make sure that open-source investigators are aware of the legal framework that is applicable to their investigation. The rationale behind this is that investigations can be more successful if knowledge regarding the substantial laws and procedural laws across different jurisdictions is available to the investigators. Up until now, using open-source information in legal proceedings has proved to bea challenge. However, if the investigation is conducted in accordance with the rules of evidence of the relevant jurisdiction, then there is the possibility of evidence being far more admissible.

Part B of the chapter addresses the complex issue of jurisdiction and accountability. It stresses upon the importance of the investigator’s ability to identify the applicable jurisdiction and accountability mechanisms. It suggests that in case the OSI are unable to ascertain the jurisdiction and accountability mechanism, the evidence should be collected and safeguarded in such a manner that it can be used across a range of ‘potentially relevant jurisdictions’.

Part D of the chapter deals with the rules of evidence and procedure. This section highlights the duty of the investigators to make sure that the collected Open-Source Evidence is “admissible, relevant, reliable and probative” before international courts or tribunals. In any international criminal investigation, the required standard of proof is higher as compared to other investigations. This is to safeguard the accused’s right to due process and fair trial. In such a scenario, the threshold for admissibility of evidence is high and significant importance is attributed to the method of collection of evidence. Therefore, it suggests that open-source investigators should focus on ascertaining the veracity of open source evidence so as to prevent any probability of misinformation.

Part E of the chapter goes on to discuss the relevance of the right to privacy and data protection. The right to privacy is enshrined as a fundamental human right in various human rights conventions such as the European Convention on Human Rights, American Convention on Human Rights etc. In light of the same, the investigator should ensure that there is no infringement of right to privacy in the course of collecting open-source evidence. Article 69(7) of the Rome Statute lays down that “evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible”. This means that that the ICC can exclude the evidence if it is obtained through violation of right to privacy.

Conclusion

The comprehensive legal framework laid down by the Berkeley Protocol can be transformational for the way open-source investigators carry out their investigations. The relevance of open-source evidence will only increase with time. At present, it is being used in a number of conflict zones and inaccessible places such as the Xinjiang province of China.

Had it not been for OSINT, the true reality of state sponsored re-educations camps that are being run for Uighur Muslims would have remained hidden for a long time. Therefore, OSINT should be utilised to the fullest extent possible for international criminal investigations.

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