TY - JOUR
AU - Llorente, Raquel Vazquez
AB - Abstract This article reflects on the landmark use of photo and video evidence in the Affaire Castro et Kizito. In 2018, a mobile military court in Kalehe, South Kivu, in the Democratic Republic of Congo (DRC) tried two members of the Forces Démocratiques de Libération du Rwanda (FDLR) for crimes against humanity and war crimes. This case broke new ground not only in the DRC, but also globally. For the first time, a court of law admitted digital photography that had been captured with the eyeWitness app, a ready-for-court technology developed to streamline the documentation of international crimes. The authors of this article are legal advisers who were involved in the case and write from their own experience to illustrate how photo and video evidence can strengthen cases and advance justice for the gravest crimes. ‘Today everything exists to end in a photograph.’ –Susan Sontag, 1977 1. Introduction In 1978, an Eastman Kodak engineer patented a prototype of a digital camera. It weighed nearly nine pounds — almost twice as much as today’s laptops — and took 23 seconds to record a black and white photograph.1 By 1999, a Japanese company had integrated a camera into a mobile phone, allowing users to store up to 20 images.2 Today, smartphones enable us to capture, save and transfer digital photos and videos of unprecedented quality. More importantly, mobile devices can also record the metadata behind the media — information such as the date or time that is of crucial importance for verifying and authenticating photos and videos.3 The growing ubiquity of smartphones and internet access opens new possibilities for photography and video in the investigation and prosecution of crimes, including core international crimes — war crimes, crimes against humanity and genocide. While images will never make other sources of evidence redundant, photos and videos can be powerful evidence to prove the criminal act, the intent of the perpetrator, or the role the accused played in the commission of the crimes. They can also corroborate other types of evidence such as witness statements, physical evidence or contents of documents, and help judges understand the magnitude of the crimes.4 For core international crimes, photo and video evidence can offer unique insights, as professional investigators often do not have timely access to the crime scene. In these instances, documentation collected by members of the affected community and local civil society organizations — also referred to as frontline documenters — can play an essential role in helping to build cases and prosecute international crimes. Yet, there is still a significant gap in the widespread adoption of basic photography forensic techniques, and some frontline documenters struggle to capture relevant and reliable footage that can stand the test of a criminal court. Likewise, prosecution, defence and judges still have a long road ahead to catch up on the technical knowledge they need to appropriately interrogate digital photo and video evidence.5 Ultimately, the utility of digital images as an instrument of justice will depend on good practices being disseminated and implemented across jurisdictions, from capture to the courtroom. This article reflects on the landmark use of photo and video evidence in the Affaire Castro et Kizito. The authors are legal advisers who were involved in the case, and write from their own experience. In 2018, a mobile military court in Kalehe, South Kivu, in the Democratic Republic of Congo (DRC) tried two members of the Forces Démocratiques de Libération du Rwanda (FDLR) for crimes against humanity and war crimes.6 This case broke new ground not only in the DRC, but also globally. For the first time, a court of law admitted digital photography that had been captured with the eyeWitness app, a ready-for-court technology developed to streamline the documentation of international crimes.7 eyeWitness technology is based on two pillars that together create a digital evidence vault. The first is a mobile camera app for smart phones or tablets that allows documenters to record photographs, videos and audio. The app uses the device sensors to capture metadata and help verify the authenticity of the footage — neither the media nor their associated metadata can be edited or manipulated by the documenter or a third party. The second pillar is the combination of a secure server system with legally sound transmission protocols, establishing a chain of custody that can be presented in court. Achieving justice for the 100 people who appeared as victims in the Affaire Castro et Kizito would have not been possible without the invaluable work of all the Congolese partners and local actors involved at each stage of the process, from the documentation phase to the trial. Their input and roles have been acknowledged throughout the article. They, and the survivors, were the force behind this project. By sharing a case study from the perspective of some of the international lawyers involved, the authors seek to illustrate how mobile technology, photo and video evidence can strengthen cases and advance justice for the gravest crimes. The authors’ hope is that this article can also spark further thinking about how genuine transnational collaborations can contribute to the fight for justice and reparations for survivors. The article begins by introducing the context in which the crimes took place and providing a brief overview of the evidentiary rules in the DRC. The second section steps through the authors’ experience in leading an international consortium of lawyers and investigators that built a robust body of digital evidence. It also describes the evidentiary analysis conducted by the legal representatives of the victims, and explains how the authors ensured the judges understood the value of the new technology used to capture most of the photo and video evidence. The third section summarizes how the lawyers presented the visual evidence in court, and gives an overview of the judgement and the evidentiary assessment. The final section offers a critical analysis of the process, and raises some of the challenges of incorporating technology in criminal justice processes. A. The Context in the DRC Since the 1990s, armed groups have been fighting Congolese military forces as well as each other in the DRC. In the second quarter of 2020, the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) recorded more than 2,000 human rights violations and abuses across the country, 8% more than the previous quarter.8 A vast number of those incidents were documented in North Kivu and South Kivu provinces. The widespread levels of violence and the scarcity of resources allocated to the justice system have resulted in an impunity gap in the DRC. In 2010, the UN Security Council mandated MONUSCO to establish Cellules d’Appui aux Poursuites (CAP) (Prosecution Support Cells),9 aimed at strengthening the rule of law in cooperation with the national government. The CAP are mandated to assist the military justice authorities in bringing perpetrators of serious human rights violations, in particular war crimes and crimes against humanity, to justice.10 In South Kivu and other provinces, the CAP play an important role in leading the Cadre de Concertation, also known as the Task Force for International Criminal Justice (Task Force). This Task Force is an informal network of international and national partners who support the work of the Congolese justice system in investigating and prosecuting international crimes. The Task Force provides technical, logistical and financial support for joint investigative missions, trials and hearings in mobile courts (audiences foraines).11 The latter are the result of an effort to bring justice closer to victims, especially those living in remote communities that otherwise would not have access to a courtroom.12 The mobile courts are regular courts — civilian and military — that are held outside official premises when the interest of justice so requires. The support of the Task Force has been critical for building the capacity of local actors to investigate and prosecute core international crimes and their ability to operate despite the active conflicts in the area. Since 2016, multiple international criminal trials have been held in South Kivu, resulting in the conviction of more than 20 individuals.13 The Congolese judicial system remains however insufficiently resourced, which makes it difficult to denounce, investigate and prosecute core international crimes in national courts. The transportation system is fairly rudimentary, and the country lacks roads and other modern infrastructure,14 especially in the eastern part where the conflict has taken its biggest toll — and where TRIAL, WITNESS and eyeWitness set up to work. The security situation remains fragile in North and South Kivu, with some areas still suffering unpredictable violence and ongoing fighting among militia groups, and between militias and the Congolese army. The combination of these factors makes access to crime scenes, witness and victims extremely difficult and risky. Under these conditions, introducing a mobile phone app to document crimes requires taking into account not only what the technology offers, but also questions around the responsibility, sustainability and local-ownership of such a process. At first blush indeed, the DRC may not look poised for innovation. It lags behind in technological development and digital literacy. Internet access is rated 145th in the world, and in 2018 only 40% of the total populations had mobile subscriptions.15 For comparison, in Myanmar the subscription rate is 113% — this means that there are more mobile subscriptions registered than number of people in the country.16 It is important to note that even with a documentation technology designed to operate in countries with low infrastructure, the challenges of incorporating technology in criminal justice processes are not only technical. While this case encountered various other obstacles unrelated to technology,17 this article focuses primarily on how visual evidence captured with a mobile device app can strengthen an evidentiary dossier, as well as the difficulties faced in using this type of tools and evidence. B. Applicable Legal Framework The legal framework in the DRC added a further layer of complexity. The country ratified the Rome Statute of the International Criminal Court (Statute) in 2002.18 However, until 2015, the definitions of international crimes in national legislation differed from those contained in the Statute. To circumvent the problem, Congolese courts could refer directly to the Rome Statute and international jurisprudence, as they have done in several occasions, including in the Affaire Castro et Kizito.19 The DRC is a monist legal system,20 and international treaties such as the Rome Statute are applicable without any implementing legislation.21 Judges can therefore apply international norms directly, provided they are self-executing, as it is the case for a significant number of the provisions in the Statute.22 This discrepancy between the national and international definition of core international crimes was solved with the adoption of a set of laws that amended the Criminal Code (Code Pénal Ordinaire), the Military Criminal Code (Code Pénal Militaire) and the Criminal Procedure Code (Code de Procedure Pénale), homogenizing the definitions of war crimes, crimes against humanity and genocide with the provisions contained in the Statute.23 The Affaire Castro et Kizito was heard in a mobile military court.24 Since 1972, military courts have had exclusive jurisdiction over core international crimes such as the ones committed in Lumenje and Kamananga, even if suspects were civilians.25 The path for ending the exclusive jurisdiction of military courts was initiated in 2013, when a new law opened up the possibility for civilian courts to exercise jurisdiction over war crimes, crimes against humanity and genocide.26 These legal landmarks, however, did not rule out the jurisdiction of the military, and to date, most of the core international crimes cases continue to be tried by military courts.27 In the military justice system, the judges and prosecutors are members of the military, and victims can take part in the proceedings as civil parties to demand reparations for the damage suffered.28 In the Affaire Castro et Kizito, the authors supported the organizations working with the victims and the counsel representing them as civil parties. The Congolese Code of Criminal Procedure does not define the concept of evidence. Criminal proceedings in the DRC follow the ‘principe de la liberté de la preuve’ — which establishes that offences can be proven by any means of evidence — and the principle of ‘intime conviction’ — which gives judges discretion to assess the admissibility and weight of the evidence presented, according to their own conscience.29 No means of proof prevail over others, but judges cannot refuse evidence that the parties are ready to provide without giving specific reasons, such as evidence being ‘not relevant, conclusive, and admissible’.30 Generally, judges have interpreted the admissibility and weight of evidence in a holistic manner, and have provided little guidance about the specific criteria considered. The absence of formal rules and coherent jurisprudence has translated into judges applying different interpretations of relevance, reliability and weight without methodical explanation.31 According to ICC jurisprudence, relevance concerns the relationship between a proposed piece of evidence and the existence of a fact in issue.32 Unless immediately apparent from the exhibit itself, it is the responsibility of the party tendering the evidence to explain how a factual proposition relates to a material fact of the case and how the particular item of evidence makes this factual proposition more or less probable.33 The criteria to assess reliability can include the source of the information, the nature and characteristics of the item of evidence, whether the information was obtained and recorded simultaneously or shortly after the events, the purpose for which the piece of evidence was created, and whether the information and the way in which it was gathered can be independently verified or tested.34 In sum, the legal representatives of the victims had little guidance about the rules and jurisprudence applicable to digital evidence. The entanglement of national and international law principles, combined with the dearth of judicial decisions that provide detailed reasoning on the assessment of evidence, added uncertainty to how photo and video evidence would be received in court. 2. Using Photo and Video to Strengthen the Evidentiary Dossier for Historical Crimes On 5 May 2012, a unit of the FDLR attacked the village of Lumenje in South Kivu.35 Fourteen civilians were killed and several others wounded, some of them suffering horrific amputations. The entire village was burnt to the ground, including the primary school. The Commanders in charge of the violence left a handwritten note amidst the bodies, explaining the rationale for the brutal attack. The town was seen as supporting the rival Raia Mutomboki militia — a local defence group, formed by the civilian population, that first appeared in 2005 in Shabunda, South Kivu, in response to the FDLR massacres in the area.36 Nine days after the massacre in Lumenje, on 14 May, the same FDLR unit raided the nearby town of Kamananga. The modus operandi was similar, resulting in 34 civilians being killed, several others wounded, and the village completely destroyed. As in the previous attack, the leaders of the group left a similar note. The day after the assault in Kamananga, the local non-governmental organization, Action pour la Restauration de la Paix et la Justice (ARPJ) (Action for the Restoration of Peace and Justice), carried out a documentation mission to the village. As the Red Cross buried the bodies of the victims, a member of ARPJ took several photographs. Some of the survivors’ injuries were also captured, albeit not in a systematic manner, making some of the wounds difficult to place on the victims’ bodies. Five years later, the Auditeur Militaire de Garnison (the Military Prosecutor in Bukavu) opened an investigation into the alleged crimes committed in Lumenje and Kamananga, and requested technical assistance from the Task Force. This section expands on the investigation of the crimes and the role that the different actors played in collecting and analysing the evidence needed to build the case. It also describes the training and mentoring provided to the Congolese documentation and legal teams. Lastly, this section explains how the technology developed by eyeWitness can be used in environments with low infrastructure and high security risks to document crimes like those committed in the DRC. A. Partnership Development: Designing a Transnational Alliance to Investigate and Build the Case Many local actors in DRC lack technological awareness and specialized training on documenting and analysing mass atrocity crimes. In 2016, TRIAL initiated a project to mentor local lawyers and NGOs on using visual evidence to document and litigate core international crimes, bringing in WITNESS and eyeWitness for technical support. This collaboration sought to combine different areas of expertise in order to overcome the challenges of documenting and investigating international crimes in the DRC, while maintaining a survivor-centered approach to criminal justice. Congolese human rights defenders and lawyers would bring their familiarity with the context and communities, and their legal expertise on domestic criminal law; TRIAL would contribute its knowledge in evidence analysis, international criminal law and strategic litigation for mass crimes cases; and WITNESS and eyeWitness would bring their experience in working with photo and video evidence to help secure accountability for core international crimes. The consortium’s overarching goal was to understand how visual information could strengthen the evidentiary record in key cases brought before courts in the DRC — ultimately achieving justice for the affected communities. When assessing whether to move forward with the project, the organizations considered the challenges and drawbacks of incorporating a mobile documentation technology in criminal proceedings in the DRC. For instance, the organizations reflected on how to prevent technology-related difficulties during investigation missions, the misuse of the technology and the loss or mismanagement of evidence. They also examined the practicalities of relying on technology in a context where infrastructure is lacking. As such, the organizations thought ahead about how hardware could be provided, maintained, securely stored and replaced in case of loss or theft. Standard Android phones with the eyeWitness app were provided to each Congolese organization at the beginning of the training phase. The eyeWitness app is not heavy on the memory of the phone and is available on GooglePlay for Android 6.0 ‘Marshmallow’ and later versions,37 so it can run on inexpensive devices. The funds allocated to technology needs were thus kept to a minimum, as eyeWitness provides free of charge all their software, servers and technical support. Having the phones from an early stage allowed the human rights defenders and lawyers to familiarize themselves with the smartphone camera and eyeWitness app well before implementing the field missions. TRIAL made its office available for charging the devices, but the organizations rarely needed it as they had regular access to electricity. In other situations, the identification of power stations should be part of an initial assessment. Similarly, the Congolese partners needed a secure location to store the hardware to avoid attracting the attention of malicious actors. For this project, all phones were secured in a safe. In any instance, the footage recorded with the eyeWitness app is stored in an encrypted gallery within the app, only accessible with a password — offering an extra layer of security if a device is inspected at a checkpoint or stolen. Despite assessing and planning for various scenarios, integrating technology into investigations and prosecutions in a context such as the DRC can bring obstacles that may delay, endanger, or undermine accountability processes. To help minimize operational difficulties, TRIAL had a permanent presence of local and international staff. Their team ensured that communication among the partners was clear, and provided in-depth training and mentoring as needs evolved. They also helped manage risks and respond to challenges as they arose. This continuous presence gave Congolese organizations access to timely support when a documenter ran into technical issues with the mobile phones or the documentation app. While the commitment to stay close to the communities is a resource-intensive approach, the advantages of having a permanent representation of as many partners as possible far outweigh its costs. In many instances, like in the Affaire Castro et Kizito, it can be a key factor in getting a case to the courtroom. With the foundations of the project in place, TRIAL, WITNESS and eyeWitness developed a comprehensive training and mentoring programme in collaboration with local documentation groups and lawyers. Extending throughout 2017 and 2018, the training focused on ensuring that Congolese-based documentation teams could capture high-quality, actionable and trial-ready photos and videos that met criminal justice standards.38 For documenters to grasp what to put in the camera’s frame, they need to have a good understanding of the elements of a crime — the act or omission in question (actus reus, or material element), and the state of mind of the perpetrator (mens rea, or mental element). For core international crimes, the prosecutor not only has to prove that a certain act was committed, but also the chapeau or contextual elements of the crime, and the connection of an individual to the act (the mode of liability). The training sessions first helped the documentation teams grasp how to break down the crimes into their different elements. Once the foundational knowledge was clear, the documenters learned how photo and video can prove each element, maximizing the likelihood of collecting relevant visual information. The training also addressed the full cycle of evidence — collection, preservation, analysis and submission to court. When documenting core international crimes with photo and video, the relevance and reliability of a piece of evidence translates into ‘what’ to film and ‘how’ to film, respectively. As part of the programme, Congolese lawyers and organizations learned how to develop collection plans to ensure the information captured would be relevant to a case (‘what’ information they should collect). The training programme also covered basic forensic filming techniques to strengthen the reliability of photos and videos (‘how’ to collect the information).39 The purpose was for Congolese groups to practice how to give a good visual description of the crime scene to someone who had never seen it previously.40 Other modules covered the basics of archiving and security during investigation missions. Even though eyeWitness proprietary software helps local groups curate their visual information, and the organization also takes care of the cybersecurity of the app and the digital evidence vault, these modules were included for few reasons. First, acquiring this knowledge helps groups evaluate for themselves if a technology is fit for the situation in which they intend to use it. Second, understanding how to create and safeguard their own visual archives makes organizations less reliant on external solutions. Third, being familiar with these concepts and processes can help local groups understand the resources that are needed to conduct responsible investigations. Aside from the hands-on trainings, the capacity-building program developed by the consortium included several mentoring sessions. These smaller meetings were tailored to groups who were working on specific cases and needed support throughout all the investigative phases and the litigation in court. B. Evidence Collection: Utilizing a Mobile Technology App to Capture and Preserve Photo and Video Evidence One of the organizations that took part in the first training held in June 2017 was ARPJ, the group which documented the massacres in Lumenje and Kamananga. During one of the sessions a participant from ARPJ, reflecting on the use of visual evidence in cases he had documented in the past, mentioned the existence of the visual images that had been taken back in 2012 in the two villages. As part of the Task Force, TRIAL was already involved in the preliminary investigations for this case and immediately understood that this material could be relevant. Coincidentally, the Military Justice Prosecutor and the Task Force had plans to conduct a joint investigative mission to Lumenje and Kamananga.41 Before this mission, TRIAL, the lawyer representing the victims and ARPJ examined the photographs and videos that had been collected in 2012. The footage included pictures of the digging of the mass grave in Kamananga, corpses from the massacres in Lumenje and Kamananga, half-burned houses and goods, and survivors with open wounds. While the pictures were relevant, they lacked metadata to establish the date, time, and location where and when they had been taken. The photographer’s identity was known, and he was willing to testify to the circumstances in which the photographs had been taken and stored, but the lawyers were still concerned that this information would be insufficient for court. It was also difficult to prove that the images actually showed survivors of the two massacres. With the challenge in mind of gauging the reliability of the photos, the legal team prepared a plan to collect new photographic evidence. They gave careful consideration to how new footage could contribute to the reliability assessment of the images and videos that had been recorded in 2012. Generally, a collection plan includes a list of: (i) each element that needs to be proved to qualify a conduct as an international crime; (ii) the evidence that has already been collected; and (iii) the evidence that has yet to be collected. Initially, the lawyers focused on capturing new photographs of the mass grave. The collection plan detailed the list of images that could be relevant, and included photos and videos showing the graves in Lumenje, the mass grave in Kamananga, and the layout of the villages. The latter photos could help the lawyers and the court understand how the FDLR carried out the attacks. As a whole, the images had a double purpose. They could provide relevant information for the qualification of the conduct as a crime against humanity (by showing the widespread and systematic character of the killings), while also helping strengthen the reliability of the pictures taken in 2012 (by comparing the structure and size of the mass grave). While the plan did not include the collection of photographic evidence of injuries, the lawyer representing the victims located some of the survivors and photographed, with their consent, their scars and amputations. As part of the consortium agreement, TRIAL supplied mobile devices with the eyeWitness app to ARPJ and the lawyer carrying out the documentation mission. The eyeWitness mobile camera app does not require significant memory space on the device, and it allows the documenter to record photographs, videos and audio embedded with a timestamp, location data and a unique alphanumeric code. The user cannot alter this information nor edit the footage. This is known as verification ‘at the point of capture’ — in contraposition to verifying the information once the media has been extracted from the device.42 Once opened, the eyeWitness app records location metadata from Wi-Fi networks, cell towers and global positioning systems (GPS).43 These three independent sources can aide the corroboration of each location data point. While in remote areas of South Kivu Wi-Fi networks are not available, satellites can still provide location coordinates and mobile phones may fall within range of cell towers (Figure 2, below). For the date and time, the eyeWitness app records both the GPS timestamp and the time of the device.44 In contrast, the regular camera of a phone and some documentation apps may pull the date and time only from the device itself. Since anyone can change the date and time of a phone, the device’s timestamp would need further corroboration.45 When the footage may be used in a criminal proceeding, more metadata is not necessarily an advantage. For instance, some metadata, like altitude, is generally created by interpreting different data points taken from the hardware sensors and other sources — opening up to error or discrepancies across devices.46 If the metadata captured with an app is incorrect or irregular, this can call into question the integrity of the photographs and videos. For this reason, the eyeWitness app does not capture information that may be recorded inconsistently. It uses the sensors of the hardware to collect most information, so the lack of connectivity does not affect the reliability of the metadata.47 This means that there is no need for a data plan or even a SIM card. The software also regularly clears old data, avoiding the problem of registering historic data, such as the device’s last known location, that may not match the coordinates where the footage is being recorded.48 This is different from the regular camera of a phone and other mobile camera apps, which may pull certain metadata from the memory of the phone or exclusively from the device itself. They may rely on phone signal and Wi-Fi to pinpoint the location of a device, with some apps recording the phone’s last known location if they cannot find a GPS or phone signal — even if this is kilometers away.49 This is a real and frequent problem for teams documenting core international crimes and human rights violations, who often conduct their work in countries where the internet has been disrupted or shut down, or in remote areas without cell signal. When a photo or video is taken with the eyeWitness app, the algorithm generates an alphanumeric code (or ‘hash value’) from the raw bytes of the media file.50 This code acts as a digital fingerprint. Any edits to the media, such as cropping or adding filters, would alter it. Some documentation apps may generate this identifying code after the footage has been taken, which does not necessarily help verify if the media has been altered, as the editing could have taken place before generating the hash value.51 Additionally, the eyeWitness hash is stored encrypted in a text file inside the app, packaged with the media and the metadata files, and transmitted encrypted to a server maintained by Lexis Nexis Legal and Professional on behalf of eyeWitness.52 While the user can create copies of the footage once it has been transferred to eyeWitness, the version stored on eyeWitness servers is the product of that first direct upload, to which a chain of custody is attached.53 When a photo or a video is saved in the regular gallery of a device, the chain of custody is not necessarily protected as anyone can edit or share the media. In the eyeWitness system, detailed records memorialize when the information was received, how the data packets moved through the server system, and when and by whom the data was accessed.54 As we will explain further in Section 3A, the court may require this documentation when the footage is submitted as evidence in a criminal proceeding. C. Evidence Analysis: Using Trusted Metadata to Corroborate Historical Photographs and Videos Armed with the foundational knowledge of the elements of international crimes and filming techniques, a visual evidence collection plan, and a technology that could help with the verification and authentication of the footage, the documentation team captured relevant information of high quality. This was a powerful outcome. Five years after the attacks took place, new photos and videos could help strengthen the case and corroborate photographs that had been captured in 2012. Next, the legal representatives of the victims, mentored by TRIAL, analysed the full body of visual evidence in order to assess its relevance and reliability. The pictures taken in 2012 showed victims’ injuries, deceased individuals, the early stages of the construction of the mass grave in Kamananga, and the aftermath of the attack in the two villages. The photographs captured in 2017 portrayed individual graves in Lumenje and the completed mass grave in Kamananga. They also showed the scars and amputations that victims had suffered, in a manner that allowed for the victims to be identified. The pictures taken in 2012 were relevant because they had been taken right after the attacks, but their reliability was difficult to assess. The legal team conducted a visual comparison of the content of the photographs, and established that they had been captured in the same place. All the pictures from 2017 were taken with the eyeWitness app, and they had embedded trusted metadata that established the location of the graves and the villages. The photographs taken during the digging phase provided visual help in determining the size of the mass grave, which was corroborated by the witness’ statements and measurements taken on the site during the 2012 documentation mission. Footage of the village was also used in corroboration with witness statements, and helped reconstruct the crime scene and the logistics of the attack. The legal team conducted a similar comparison of the pictures showing the survivors’ injuries. There were no records that could help identify the victims who had been photographed in 2012. In most cases, the specific injuries could not be connected to a particular individual. In contrast, the photographs taken in 2017 followed basic forensic techniques, and were accompanied by information that identified each of the survivors. Without the most recent photographs, the pictures taken in 2012 would have been less reliable, as the identity of the survivors would have been very difficult to establish. The lawyers compared the scarification tissue shown in 2017 with the injuries depicted in 2012, and corroborated their findings with witness statements. These two sets were a strong combination, and helped prove that the scars in the 2017 pictures resulted from the crimes committed in 2012. All photographs and videos from both documentation missions were included in the case file, along with the documentation needed to facilitate the verification and authentication of the material.55 3. Bringing Photo and Video Evidence into the Courtroom The trial opened on the 23 August of 2018 in the village of Kalehe. Traditionally, evidence submitted by victims’ lawyers in the mobile military courts for international crimes cases has been limited to documentary evidence and witness statements, with digital photo and video evidence featuring only occasionally.56 This is due partly to some of the difficulties attached to collecting, preserving, analysing, curating and presenting photo and video evidence in a manner that complies with the admissibility criteria of a court. While basic forensic photography skills can be fairly simple to absorb, other steps in the evidence cycle can be more complex to operationalize for civil society. Many groups do not have access to a secure server, nor the resources needed to assess the systems and protocols for maintaining a storage system for photo and video evidence. Lacking appropriate protocols for handling and storing information can harm the reliability of the footage, at worst making it inadmissible in court.57 However, the strategic use of visual evidence can provide legal teams with an edge at trial, especially in complex criminal proceedings like the Lumenje–Kamananga case. This section explains how the legal representatives of the victims prepared key photos and videos for their presentation in court, and how the photos and videos were evaluated by the judges. A. Sharing Digital Evidence with the Parties: The Importance of Explaining Authenticity and Chain of Custody In August 2018, eyeWitness received a request for information from the Military Prosecutor in Bukavu. While the documenters in the DRC had their own copies of the photos and videos they had captured with eyeWitness, the original files are always stored in a digital evidence vault under protocols that maintain the chain of custody.58 For criminal proceedings, lawyers generally prefer to submit this original version to the court.59 When eyeWitness is contacted and asked for access to information they may hold in their servers, the legal team evaluates the nature and scope of the request, including details such as the nature of the entity requesting the information, the specificity of the petition, the potential security risks to the sources and others, the independence of the judiciary and other human rights guarantees, and whether there are any other legal proceedings ongoing and if so, their legality. With regard to this request, eyeWitness’ legal team identified the visual records that fell within the scope, narrowing it down to 92 photographs. eyeWitness then requested the consent of the source before handing over the photographs, their corresponding metadata and the notes that had been submitted by the documenters through the app. In order to facilitate the admissibility of the photographs that were being inserted in the prosecution’s dossier, eyeWitness prepared a signed affidavit in consultation with Congolese local counsel. The purpose of the document was to provide enough information that could help the judges assess the authenticity of the information and the established chain of custody. While the source code and further explanation of the full system were available for review in court by judges or an expert witness, this was not required during the course of the proceedings. The affidavit covered the points of law that need to be proved for visual information to be considered reliable, and contained details on: the system implemented to bind the mobile device to the eyeWitness server on the initial registration of the app, and how this setup prevents media tampering; the encryption and transmission protocols; the protocols to access the servers and their management procedures; and the hashing methodology. It also included a detailed breakdown of the location data available for each of the photographs, the database used for converting the source metadata into location information, and the analysis and verification of the sources for timestamping. eyeWitness timestamps the footage at the moment of capture using Unix epoch convention,60 which is widely used in operating systems but needs to be converted into a ‘human-readable’ date and time (Figure 1). Similarly, network identifiers for cell towers and Wi-Fi connections need to be processed by a database in order to obtain a more conventional read, such as a GPS coordinate on a map (Figure 2).61 Figure 1 Open in new tabDownload slide Examples of Unix epoch (left) and equivalent timestamp in human readable time (right). Figure 1 Open in new tabDownload slide Examples of Unix epoch (left) and equivalent timestamp in human readable time (right). Figure 2 Open in new tabDownload slide Example of network identifiers for a cell tower (top) and their equivalent GPS coordinates on a map (bottom). Figure 2 Open in new tabDownload slide Example of network identifiers for a cell tower (top) and their equivalent GPS coordinates on a map (bottom). When technology is used for evidence collection, how it works and how it is applied needs to be transparent to ensure all parties can properly evaluate and challenge the evidence being presented. While eyeWitness developed its mobile app, transmission protocols and server system to address general admissibility standards across jurisdiction, the organization took into account the aspects of the technology that were most salient under Congolese law when preparing the affidavit for the court. Explaining these different elements not only facilitates the assessment of the digital evidence presented, but also contributes to upholding the right to a fair trial. B. Presenting Audiovisual Evidence in Court: Considerations in Selecting and Displaying Images of Atrocities Once the legal team representing the victims had submitted their filing, they considered how the full body of visual evidence could be presented to help the judges gain a fuller understanding of the facts. The legal team combed through the material and selected a subset of images to show in court. They considered the ability of the photographs and videos to explain the alleged crimes and their severity, and whether they could help corroborate other evidence — such as witness statements. They also took into account whether showing certain images would violate any ethical responsibilities, cause security risks, mislead the judges, or have a prejudicial effect. The final set, which the lawyers believed could serve as a representation of the full body of visual evidence, was compiled into a succinct video presentation. Following WITNESS mentoring, the legal team prepared a ‘paper cut’, an initial text-based description of what the film would ‘look like’ when it is finished. They collaborated with an external editor, who stitched together the sequence, and provided suggestions to improve the narrative proposed by the lawyers. After several rounds of feedback and revisions, the final video was a brief, understandable and, most importantly, an accurate representation, of the body of visual evidence.62 According to one of the lawyers in the courtroom, the screening caused the ‘atmosphere in court [to] switch[] dramatically’.63 The defence argued that the visual evidence did not prove the presence of the accused at the crime scenes,64 but they did not raise any other challenges. C. Assessing Photo and Video as Evidence of Core International Crimes: The Judgement On 21 September 2018, the Military Tribunal in Bukavu delivered the verdict on the case. The court found the two accused, FDLR militia commanders Gilbert Ndayambaje (alias Castro) and Evariste Nizehimana (alias Kizito), guilty of murder and torture, both constituting crimes against humanity, as well as pillage and arson as ordinary crimes.65 The judgement in the Affaire Castro et Kizito does not fully address the complexities of interpreting digital evidence, however, it provides some reasoning on the probative value of photo and video. The judges made reference to the principle of freedom of evidence in considering the admissibility and weight of the evidence presented.66 They admitted the visual evidence presented by the prosecutor and the legal representatives of the victims and gave weight to the photographs in their analysis of the contextual elements of the crimes (i.e. the widespread or systematic character of the attacks).67 The court expressly mentioned the value of the photographs and videos to prove the material elements of three of the four crimes charged, and acknowledged their importance in corroborating the testimony of victims, witnesses and the sparse physical evidence.68 According to the judges, the ‘photos and images speak for themselves’, and contributed to prove the severe suffering that was inflicted on the victims with the aid of machetes and other weapons of war. This was necessary to prove the torture charges.69 The judges also concluded that the images helped establish the material act of killing.70 For the arson charge, the visual evidence assisted in proving the material and mental elements. The images were proof that, ‘not only was the fire set on the houses, but also the fire produced the expected results by the attackers destroying both the houses and what was inside’.71 Likewise, the photos and videos established that houses and belongings were burned extensively.72 The Tribunal ordered the accused to pay economic compensation, and all 100 victims party to the proceedings were awarded reparations close to the amounts demanded. However, the Tribunal did not find the state liable, even though the civil parties and the prosecution argued that the state had failed in its obligation to protect civilians. Hence, other forms of reparations requested by the civil parties were not granted — for instance, that the state erect a memorial in the villages in honor of the victims, set up a health centre, and rebuild the school that was destroyed during the attacks in Lumenje. Notwithstanding this decision, the legal representatives of the victims regarded the investigative process and the trial as a meaningful milestone for criminal justice in the DRC. This case marked the first time that digital footage taken with a mobile device was admitted as evidence of core international crimes. Furthermore, it was the first instance that photo and video captured with eyeWitness technology was tested in court. The Affaire Castro et Kizito also proved that, under certain circumstances, photo and video can play a key role in the documentation of crimes even if the acts took place years prior — something of particular importance given that often times mass atrocity crimes are investigated long after they have been committed. 4. Conclusions: The Possibilities and Challenges of Mobile Technology in International Justice Photographs and videos are a powerful medium to corroborate witness statements, present crime scenes, help establish patterns and modus operandi, and make an expansive body of evidence easier to understand. In 2016 TRIAL, WITNESS and eyeWitness came together to support Congolese lawyers and human rights defenders, and explore how mobile documentation technologies could contribute to the pursuit of justice for egregious human rights abuses in the DRC. Close cooperation between partners enabled civil society and lawyers to improve their forensic photography techniques, implement documentation management protocols, learn visual analysis practices, gain expertise to incorporate photo and video evidence in their legal strategy, and curate visual information for a compelling presentation in court. However, before incorporating technology throughout the justice process, organizations should consider the challenges that may arise at each stage, and the potential downsides. First, it is essential that a technology is fit-for-purpose. While there are many mobile documentation apps that help preserve metadata, many do so in a manner that may not facilitate the admission of the footage in court — failing to meet the expectations of the activists and documenters who may have invested time and resources, oftentimes at high risk. When evidence derived from a software is inserted as evidence in a trial, any of the parties may request access to documents that explain how the technology works. Failing to provide this information may jeopardize the admissibility of the evidence, undermining the efforts of the documentation team. Similarly, any software technology that is being deployed in a context where the risks are elevated and the infrastructure is lacking should be able to operate on hardware that is easy to replace and maintain in case of loss or theft. The cybersecurity protocols for the safeguarding of evidence should also be under constant scrutiny and evolve as surveillance and hacking capabilities become more available to malicious actors. With core international crimes, the arc of justice is long and the stakes are high. While the proliferation of technology solutions can provide new investigative opportunities, it is important that groups carefully evaluate if the organization or company behind a documentation technology can support them in their justice journeys. Secondly, even with technologies like eyeWitness, which was designed to streamline the documentation process of core international crimes in countries like the DRC, there are limitations to what technology can deliver. If a piece of software is easy to use, there is a temptation to throw technology at the problem — a tool however may not be able to overcome deficiencies in the documentation process. As seen in this case, while mobile documentation apps can increase the reliability of photos and videos, there is a gap between the evidence that prosecutors need for proving a crime, and the knowledge that some of the groups on the frontlines have in terms of capturing information that can be relevant to an investigation. A successful case will require the ability to transform this information into something that lawyers and prosecutors can use. Local documentation teams and legal actors can build the knowledge to incorporate technology in their investigations, develop their own evidence collection plans, analyse photo and video evidence, identify the most suitable legal strategy, and present the material in court. However, as this collaboration shows, these partnerships are resource-intensive, and are still a rare occurrence in international criminal justice. Projects that include evidence gathering cannot rely exclusively on a technology tool to collect material that is relevant and keep people and evidence away from harm. Even if a technology has low adoption costs for the local organization and can help streamline the documentation process, activists and lawyers still need to have the knowledge to conduct investigations that gather the evidence needed to prove a crime without putting themselves, victims and communities at risk. Thirdly, to be sustainable, transnational consortiums need to be designed with the goal of making the local groups independent from international expertise. While every step in this case had the input of the Congolese organizations, often local groups are seen as the ones who can provide only contextual knowledge and access to the victims and survivors’ communities — and the legal expertise and technical skills are ‘parachuted’ into the country. The reality is that, for a variety of reasons, international experts are generally not able to have a constant presence in the country where the evidence is being collected or the case heard. For the Affaire Castro et Kizito, having advisors permanently in the DRC was crucial to create meaningful collaboration among all the organizations during every step in the case-building process, and to ensure that local lawyers and documentation teams were on the same footing as the international organizations. This constant interaction allowed the Congolese groups to put into practice the knowledge developed during the trainings, applying it to their own cases instead of to classroom scenarios. Additionally, the video prepared for court was deliberately low cost to promote practices that could be continued by the Congolese groups without access to expensive software or professional editors. Approaching partnerships as a means for local actors to achieve independence from international organizations cannot only empower civil society, but most importantly, contributes to strengthening domestic criminal justice by making certain processes easier to replicate. Fourthly, funders bear responsibility for making the integration of technology a responsible and sustainable practice. Before financing a new prototype, they should have a detailed understanding of why an existing technology is not fit-for-purpose, and how a new solution will help address gaps in the market. At present, and for the foreseeable future, the pool of potential users of documentation apps is small compared to other mobile apps. However, these users play a vital role in the investigation of human rights abuses and core international crimes, and their work can have a significant impact on the success or failure of a case. Funding the uptake of technologies for which proof of concept already exists can help build a larger user base and gain more feedback, in turn contributing to patching bugs in the code, catching any security vulnerabilities and making the software more user friendly. In this regard, funders can play a very important role in coordinating, or at least avoid duplicating, technology development projects. In many instances, funds may be better directed towards adapting tools and ensuring they are interoperable. For contexts where atrocities and serious human rights violations are ongoing, bringing in a new technology raises security and ethical questions such as the ones explored earlier in this article.73 If a documentation technology has not been designed and tested with and for the teams who will be conducting the investigative work, the drawbacks can outweigh any potential benefits. To minimize any risks to people, evidence and justice, funders should ask for technologies developed by interdisciplinary teams with the necessary experience. Incorporating documentation technology into transitional justice processes, in particular criminal proceedings, requires specialized legal knowledge. Technology developers should have access to this expertise before, during and after the development of the tool, so legal requirements are integrated by design into the code and the software can be updated if needed. Lastly, incorporating a new technology into criminal proceedings brings up questions regarding the equality of arms and the right to a fair trial. The eyeWitness app can be downloaded free of charge from the GooglePlay store, making it accessible to all parties. However, as this case has shown, the victims’ lawyers and the Congolese organizations received extensive support and mentoring to make the most out of the technology. Who has access to hardware and software that can capture information considered authentic and reliable by courts can impact how a case is built. Most importantly, who has access to the knowledge needed to query the evidence that it generates can impact how justice is delivered. With an increasing volume of digital evidence playing a role in the investigation of core international crimes, the ability of the prosecution and the civil parties to explain the systems used in collecting, preserving, verifying and curating visual evidence will have a central role in ensuring the defendant’s rights are protected. Similarly, judges will require at least some foundational knowledge to be able to interpret and interrogate the data being presented to them. In the Affaire Castro et Kizito, the defense argued that the visual evidence did not prove the presence of the accused at the crime scenes, but they did not raise any other challenges. It is unclear whether they assessed the merits of challenging the documentation that accompanied the digital evidence, and found it not to be a strategic angle to pursue; or whether they did not have the technical knowledge to challenge the authenticity and chain of custody of the data. In sum, incorporating technology throughout the justice process does not follow a one-size fits all approach. The Affaire Castro et Kizito shows that while technology is not a panacea, it can play a crucial role in strengthening an evidentiary dossier when it is accompanied by dedicated legal and technical expertise. Photo and video evidence alone will never be enough to ensure a successful prosecution, but as this case has shown, it can be a crucial piece of the puzzle. Table 1. Excerpt from the paper cut for the video presentation at trial in Affaire Castro et Kizito.a Evidentiary Goal: This video will help prove the existence, size and location of the mass grave in Kamananga, Democratic Republic of Congo . Media . Visualb . Notes/Questions for the Editor . Title Card Text: The following video was made from the photographs contained in the file and provided by NGOs eyeWitness and ARPJ. The photos supplied by eyeWitness were taken by lawyer Jogoo Vunabandi Alphonse-Marie Fidèle during a fact-finding mission in July 2017. Please use a professional font that would be acceptable to the court throughout the video, for example, Times New Roman or something similar. Your suggestion is welcome. Should we use white text on a black background? Google Map: Kamananga Map with Text over Map: Kamananga, Democratic Republic of Congo ‘Pin’ with latitude & longitude The purpose of including a map is to provide context, corroborate the reliability of the visual evidence and increase the court’s understanding. Latitude/Longitude - 2.051251666667, 28.52214166666667 Photo, Filename: DSC00955.JPG Medium-wide shot: Burnt structure in the village of Kamananga. Text over Photo: 12 May 2012 Should we place date in bottom right or left-hand corner of the photo so it is clear this is a historic photo from 2012? Video, Filename: 20 07 2017 5.MOV Timecode: 3:50–4:00c Medium shot: Headstone of the mass grave. Consider using a few seconds of the video showing the headstone of the mass grave. Pause the video and animate a line under the date on the headstone to ensure the date is easy to read. Photo Filename: 4237.jpg Wide shot: Mass grave showing its proximity to the village of Kamananga. Text: Description: Location of the mass grave Date of the photograph: 20 July 2017 Time (UTC): 07:54:42 Location: Village of Kamananga, DRC The best area to place the text seems to be the upper right-hand corner. Should we also consider adding something that shows direction to make the photo easier to understand? Evidentiary Goal: This video will help prove the existence, size and location of the mass grave in Kamananga, Democratic Republic of Congo . Media . Visualb . Notes/Questions for the Editor . Title Card Text: The following video was made from the photographs contained in the file and provided by NGOs eyeWitness and ARPJ. The photos supplied by eyeWitness were taken by lawyer Jogoo Vunabandi Alphonse-Marie Fidèle during a fact-finding mission in July 2017. Please use a professional font that would be acceptable to the court throughout the video, for example, Times New Roman or something similar. Your suggestion is welcome. Should we use white text on a black background? Google Map: Kamananga Map with Text over Map: Kamananga, Democratic Republic of Congo ‘Pin’ with latitude & longitude The purpose of including a map is to provide context, corroborate the reliability of the visual evidence and increase the court’s understanding. Latitude/Longitude - 2.051251666667, 28.52214166666667 Photo, Filename: DSC00955.JPG Medium-wide shot: Burnt structure in the village of Kamananga. Text over Photo: 12 May 2012 Should we place date in bottom right or left-hand corner of the photo so it is clear this is a historic photo from 2012? Video, Filename: 20 07 2017 5.MOV Timecode: 3:50–4:00c Medium shot: Headstone of the mass grave. Consider using a few seconds of the video showing the headstone of the mass grave. Pause the video and animate a line under the date on the headstone to ensure the date is easy to read. Photo Filename: 4237.jpg Wide shot: Mass grave showing its proximity to the village of Kamananga. Text: Description: Location of the mass grave Date of the photograph: 20 July 2017 Time (UTC): 07:54:42 Location: Village of Kamananga, DRC The best area to place the text seems to be the upper right-hand corner. Should we also consider adding something that shows direction to make the photo easier to understand? aA paper cut would normally include a column for audio as well (the transcript of what the documenter or witness is saying, background sounds, music, etc.). Since the evidentiary submission for the Affaire Castro et Kizito did not include audio, the column is not included here. bOriginal in French. The text in this table has been translated to English by the authors. cTimecode is a time or code assigned to a specific frame or point in a video. To illustrate, if the video is five minutes long or 0:00–5:00 and the relevant footage is between 3 minutes 50 seconds and 4 minutes, the directions to the editor are: Filename 07 2017 5.MOV, Timecode: 3:50–4:00. Open in new tab Table 1. Excerpt from the paper cut for the video presentation at trial in Affaire Castro et Kizito.a Evidentiary Goal: This video will help prove the existence, size and location of the mass grave in Kamananga, Democratic Republic of Congo . Media . Visualb . Notes/Questions for the Editor . Title Card Text: The following video was made from the photographs contained in the file and provided by NGOs eyeWitness and ARPJ. The photos supplied by eyeWitness were taken by lawyer Jogoo Vunabandi Alphonse-Marie Fidèle during a fact-finding mission in July 2017. Please use a professional font that would be acceptable to the court throughout the video, for example, Times New Roman or something similar. Your suggestion is welcome. Should we use white text on a black background? Google Map: Kamananga Map with Text over Map: Kamananga, Democratic Republic of Congo ‘Pin’ with latitude & longitude The purpose of including a map is to provide context, corroborate the reliability of the visual evidence and increase the court’s understanding. Latitude/Longitude - 2.051251666667, 28.52214166666667 Photo, Filename: DSC00955.JPG Medium-wide shot: Burnt structure in the village of Kamananga. Text over Photo: 12 May 2012 Should we place date in bottom right or left-hand corner of the photo so it is clear this is a historic photo from 2012? Video, Filename: 20 07 2017 5.MOV Timecode: 3:50–4:00c Medium shot: Headstone of the mass grave. Consider using a few seconds of the video showing the headstone of the mass grave. Pause the video and animate a line under the date on the headstone to ensure the date is easy to read. Photo Filename: 4237.jpg Wide shot: Mass grave showing its proximity to the village of Kamananga. Text: Description: Location of the mass grave Date of the photograph: 20 July 2017 Time (UTC): 07:54:42 Location: Village of Kamananga, DRC The best area to place the text seems to be the upper right-hand corner. Should we also consider adding something that shows direction to make the photo easier to understand? Evidentiary Goal: This video will help prove the existence, size and location of the mass grave in Kamananga, Democratic Republic of Congo . Media . Visualb . Notes/Questions for the Editor . Title Card Text: The following video was made from the photographs contained in the file and provided by NGOs eyeWitness and ARPJ. The photos supplied by eyeWitness were taken by lawyer Jogoo Vunabandi Alphonse-Marie Fidèle during a fact-finding mission in July 2017. Please use a professional font that would be acceptable to the court throughout the video, for example, Times New Roman or something similar. Your suggestion is welcome. Should we use white text on a black background? Google Map: Kamananga Map with Text over Map: Kamananga, Democratic Republic of Congo ‘Pin’ with latitude & longitude The purpose of including a map is to provide context, corroborate the reliability of the visual evidence and increase the court’s understanding. Latitude/Longitude - 2.051251666667, 28.52214166666667 Photo, Filename: DSC00955.JPG Medium-wide shot: Burnt structure in the village of Kamananga. Text over Photo: 12 May 2012 Should we place date in bottom right or left-hand corner of the photo so it is clear this is a historic photo from 2012? Video, Filename: 20 07 2017 5.MOV Timecode: 3:50–4:00c Medium shot: Headstone of the mass grave. Consider using a few seconds of the video showing the headstone of the mass grave. Pause the video and animate a line under the date on the headstone to ensure the date is easy to read. Photo Filename: 4237.jpg Wide shot: Mass grave showing its proximity to the village of Kamananga. Text: Description: Location of the mass grave Date of the photograph: 20 July 2017 Time (UTC): 07:54:42 Location: Village of Kamananga, DRC The best area to place the text seems to be the upper right-hand corner. Should we also consider adding something that shows direction to make the photo easier to understand? aA paper cut would normally include a column for audio as well (the transcript of what the documenter or witness is saying, background sounds, music, etc.). Since the evidentiary submission for the Affaire Castro et Kizito did not include audio, the column is not included here. bOriginal in French. The text in this table has been translated to English by the authors. cTimecode is a time or code assigned to a specific frame or point in a video. To illustrate, if the video is five minutes long or 0:00–5:00 and the relevant footage is between 3 minutes 50 seconds and 4 minutes, the directions to the editor are: Filename 07 2017 5.MOV, Timecode: 3:50–4:00. Open in new tab The views in this article are those of the authors and do not reflect the views of their organizations. The authors would like to thank Patryk Labuda, Patient Iraguha, Wendy Betts, Daniele Perissi, Aaron Kearney and Lindsay Freeman for their comments on an earlier draft. The British Foreign and Commonwealth Office, Swiss Federal Department of Foreign Affairs, Belgian Development Cooperation and the International Bar Association funded this project to train and mentor Congolese civil society in the investigation and litigation of international crimes. Footnotes 1 U.S. Patent No. 4,131,919 (issued 26 December 1978). 2 ‘Japan: Tokyo: Visual Mobile Phone on Show’, Associated Press Archive, 18 May 1999, available online at https://youtu.be/oHjVarSAv2Q (visited 10 April 2021). 3 Metadata is data that provides further information about other data. Examples of key metadata embedded in photo and video files are the date, time, GPS coordinates, type of camera, etc. See ‘What is Video Metadata’, WITNESS, 27 October 2014, available online at https://library.witness.org/product/video-metadata/ (visited 10 April 2021). 4 See e.g. Judgement, Lubanga Dyilo (ICC-01/04-01/06), Trial Chamber, 14 March 2012, e.g. §§ 93, 254–257, 268, 455, 481, 644, 710, 712–713, 779 and 792; Transcript, Katanga and Ngudjolo (ICC-01/04-01/07-T-90-ENG ET WT), Trial Chamber, 26 January 2010, at 24–25; Warrant of Arrest, Al-Werfalli (ICC-01/11-01/17-2), Pre-Trial Chamber, 15 August 2017, §§ 11–22; Judgment, Ntaganda (ICC-01/04-02/06-2359), Trial Chamber, 8 July 2019, e.g. §§ 387-388. 5 Digital evidence refers to any information that is generated in electronic format. This comprises photo and video — which can be also called visual evidence — and other types of information such as call data records, satellite imagery, scanned documents, messages exchanged via apps, computer-generated data and social media posts. 6 Ndayambaje Gilbert and Nizehimana Evariste (RP No. 1215/2017, RMP No. 6043/YM/017), Tribunal Militaire de Garnison Bukavu (Bukavu Military Tribunal) (2018). The case is currently on appeal. The name Affaire Castro et Kizito originates from the aliases used by the accused. 7 The technology is further explained in Section 2B. 8 United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), Report of the Secretary-General, 21 September 2020, S/2020/919, at 21. 9 SC Res. 1925, 28 May 2010, § 12.d. 10 A Memorandum of Understanding between the Congolese Government and MONUSCO signed in December 2011 set forth the framework of cooperation for the programme. See UN Peacekeeping, Report of the Criminal Law and Judicial Advisory Service Combatting Impunity in the Democratic Republic of the Congo Lessons Learned from the United Nations Prosecution Support Cell Programme, June 2015, at 1–4. 11 Ibid. 12 The DRC authorized mobile courts in 1979. Full implementation began years later. See Art. 11 Arrêté D’organisation Judiciaire Portant Règlement Intérieur des Cours, Tribunaux et Parquets, Ministère de la Justice Doc. 299/79, 20 August 1979. 13 These numbers of convictions are based on TRIAL International’s direct work in the province of South Kivu. See D. Perissi and K. Naimer, ‘Achieving Justice for Child Survivors of Conflict-related Sexual Violence in the Democratic Republic of the Congo: The Kavumu Case’, 18 Journal of International Criminal Justice (2020) 293–306, at 298–299. 14 R. Damania et al., Transport, Economic Growth, and Deforestation in the Democratic Republic of Congo: A Spatial Analysis, World Bank, (2016), available online at https://openknowledge.worldbank.org/handle/10986/24044 (visited 10 April 2021). 15 See The Borgen Project, ‘Improving Internet Access in the DRC’, available online at https://borgenproject.org/internet-access-in-the-drc/ (visited 10 April 2021); World O Meter, ‘DR Congo Population’, available online at https://www.worldometers.info/world-population/democratic-republic-of-the-congo-population/ (visited 10 April 2021); Statista, ‘Number of mobile cellular subscriptions per 100 inhabitants in the Democratic Republic of the Congo from 2000 to 2018', available online at https://www.statista.com/statistics/501992/mobile-cellular-subscriptions-per-100-inhabitants-in-democratic-republic-of-congo/ (visited 10 April 2021). 16 See Statista, ‘Number of Mobile Cellular Subscriptions per 100 Inhabitants in the Myanmar from 2000 to 2018', available online at https://www.statista.com/statistics/509591/mobile-cellular-subscriptions-per-100-inhabitants-in-myanmar/ (visited 10 April 2021). 17 For instance, in the Affaire Castro et Kizito, the perpetrators used several aliases complicating the verification of their identity, the crime scene was remote and difficult to access, and the transfer of one of the defendants from the prison where he was being held in another province to South Kivu was delayed for security issues and lack of resources. 18 Decree Law No. 0013/2002, 30 March 2002. 19 Avocats Sans Frontières, Case Study: The Application of the Rome Statute of the International Criminal Court by the Courts of the Democratic Republic of Congo (2009) available online at https://asf.be/wp-content/publications/ASF_CaseStudy_RomeStatute_Light_PagePerPage.pdf (visited 10 April 2021), at 21–64; P. Labuda, ‘Applying and ‘Misapplying’ the Rome Statute in the Democratic Republic of Congo’, in C. De Vos, S. Kendall, and C. Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (Cambridge University Press, 2015), at 422–430; S. Candeias et al., The Accountability Landscape in Eastern DRC: Analysis of the National Legislative and Judicial Response to International Crimes (2009-2014), International Center for Transitional Justice, July 2015, available online at https://www.ictj.org/sites/default/files/ICTJ-Briefing-DRC-Prosecutions-2015.pdf (visited 10 April 2021), at 8. 20 See Peace and Justice Initiative, ‘How does International Law Apply in a Domestic Legal System?’ available online at https://www.peaceandjusticeinitiative.org/implementation-resources/dualist-and-monist (visited 10 April 2021). 21 Art. 153 Constitution of the Democratic Republic of Congo, 18 February 2006, ‘Les Cours et Tribunaux, civils et militaires, appliquent les traités internationaux dûment ratifiés’ (Courts and tribunals can ‘apply the duly ratified international treaties’). See also Art. 215 Les traités et accords internationaux régulièrement conclus ont, dès leur publication, une autorité supérieure à celle des lois …. (‘The international treaties and agreements regularly concluded have, from their publication, an authority superior to that of the laws …’.) 22 A self-executing treaty is a treaty enforceable in the national courts without prior legislative implementation. See C.M. Vázquez, ‘The Four Doctrines of Self-Executing Treaties’, 89 American Journal of International Law (AJIL) (1995) 695–723, at 695. 23 Law No. 15/022, 31 December 2015, amending the Criminal Code previously set forth in the decree of 30 January 1941; Law No. 15/023, 31 December 2015, modifying the Military Criminal Code previously set forth in Law No. 024-2002, 18 November 2002; and Law No. 15/024, 31 December 2015, modifying the Code of Criminal Procedure previously set forth in the decree of 6 August 1959, DRC Official Journal [Journal Officiel de la RDC], Kinshasa, 29 February 2016. For an analysis of this set of laws see, P. Labuda, ‘Complementarity and Cooperation in the Congo’, in R. Slye (ed.), The Nuremberg Principles in Non-western Societies: A Reflection on their Universality, Legitimacy and Application (International Nuremberg Principles Academy, 2017). 24 Art. 156 Constitution of the Democratic Republic of Congo, 18 February 2006, ‘Les juridictions militaires connaissent des infractions commises par les membres des Forces Armées et de la Police nationale’ [‘Military jurisdictions have competence over crimes committed by members of armed forces and national police’]; Arts 106–113, Law No. 023/2002, Military Judicial Code, 18 November 2002. 25 Art. 156 Constitution, supra note 24; Arts 76, 105–112 Law No. 23/2002, supra note 24. See Labuda, supra note 23, at 173. 26 Law No. 13/011-B, 11 April 2013, ‘[P]ortant organisation, fonctionnement et compétences des juridictions de l'ordre judiciaire’ [‘[R]egarding the organization, functioning, and competences of jurisdictions of the judicial order’]. 27 See Labuda, supra note 23, at 173–174. 28 Arts 77 and 226 Law No. 23/2002, supra note 24. 29 See M.S. Nyabirungu, Traité de Droit Pénal Général Congolais (2nd edn., Droits et Sociétés, 2005), at 533. 30 Ibid. See also A. Rubbens, Le Droit Judiciaire Congolais, l’Instruction Criminelle et la Procédure Pénale (Presse Universitaire du Congo, 2010), at 147–149 for limitations on the principle of freedom of evidence. 31 Avocats Sans Frontières, supra note 19, at 6; Labuda, supra note 23, at 178. See also J.B. Mbokani, La jurisprudence congolaise en matière de crimes de droit international: Une analyse des décisions des juridictions militaires congolaises en application du Statut de Rome (Open Society Initiative for Southern Africa, 2016), at 336–340. 32 Decision on the Prosecutor's Bar Table Motions Katanga and Ngudjolo (ICC-01/04-01/07), Trial Chamber, 17 December 2010, § 16. 33 Ibid. 34 Ibid., § 27. 35 The FDLR is a militia created in 2000 from the rebellions that emerged out of troops belonging to the defeated, pre-genocide Rwandan army, and various affiliated militia under the command of Lieutenant-General Sylvestre Mudacumura. See Suluhu Working Papers, ‘Armed Group Biographies’, available online at https://suluhu.org/congo/biographies/ (visited 10 April 2021). 36 Ibid. 37 At the time of the project, the eyeWitness app was available for earlier versions, from Android 4.1 ‘Jelly Bean’. 38 The trainings were based on WITNESS’ Video as Evidence curriculum. See K. Matheson, Video as Evidence Field Guide (1st edn., WITNESS, 2015). 39 Forensic photography, also referred to as crime scene photography, sets out techniques that allow the documenter to record the appearance of the crime scene and physical evidence in order to provide a permanent record for courts. 40 Matheson, supra note 38. 41 Under the terms of the Memorandum of Understanding between the Military Justice Prosecutor and the Task Force, the prosecutor can request technical assistance from the Task Force for an ongoing investigation. 42 W. Betts and R. Vazquez Llorente, ‘Making your Metadata Matter’, WITNESS, March 2020, available online at https://blog.witness.org/2020/03/making-your-metadata-matter/ (visited 10 April 2021). See also, W. Betts and R. Vazquez Llorente, ‘Making your Metadata Matter, Part 2’, WITNESS, April 2020, available online at https://blog.witness.org/2020/04/making-your-metadata-matter-part-2/ (visited 10 April 2021). 43 ‘Using Metadata to Prove the Reliability and Validity of Footage’, eyeWitness, available online at https://www.eyewitness.global/Using-metadata (visited 10 April 2021). 44 Ibid. 45 Betts and Vazquez Llorente, supra note 42. 46 Ibid. 47 eyeWitness, supra note 43. 48 Ibid. 49 Betts and Vazquez Llorente, supra note 42. 50 eyeWitness, supra note 43. 51 Betts and Vazquez Llorente, supra note 42. 52 eyeWitness, supra note 43. 53 Ibid. 54 Ibid. 55 During the 2017 mission, all photos were taken with the eyeWitness app and longer videos were captured with a DSLR camera. 56 For examples of jurisprudence in which digital evidence has been used see R. Nyabirungu Mwene Songa, La Preuve Numérique dans le Procès Pénal en République Démocratique du Congo, TRIAL International (forthcoming), at 43–46. 57 Betts and Vazquez Llorente, supra note 42. 58 eyeWitness, supra note 43. 59 In systems that follow the common law tradition, this is called the ‘best evidence’ rule. 60 The Unix epoch (or Unix time or POSIX time or Unix timestamp) is often used by computer systems for tracking and sorting dated information. Unix time is the number of seconds that have elapsed since 1 January 1970 (midnight UTC/GMT) minus leap seconds. For an example of how to convert this manually, see Epoch Converter, ‘Epoch & Unix Timestamp Conversion Tools’, available online at https://www.epochconverter.com/ (visited 10 April 2021). 61 Betts and Vazquez Llorente, supra note 42. 62 The video presented in court, ‘Fosse commune : Massacre de Kamananga (Compressed final)’, can be viewed online at https://www.youtube.com/watch?v=_UnKeo2hWO4&feature=youtu.be (visited 10 April 2021). 63 ‘DRC: Two Militiamen Found Guilty of Crimes Against Humanity’, TRIAL International, 25 September 2018, available online at https://trialinternational.org/latest-post/drc-two-militiamen-found-guilty-of-crimes-against-humanity/ (visited 10 April 2021). 64 Judgement, Ndayambaje and Evariste (RP No. 1215/2017, RMP No. 6043/YM/017), Tribunal Militaire de Garnison Bukavu (Military Tribunal Bukavu), 21 September 2018 at 55 (hereinafter, Judgement, Affaire Castro et Kizito). 65 Ibid., at 84–85. 66 Ibid., at 56. 67 Ibid., at 63. 68 The defendants left two handwritten notes on the corpses, signed under a different moniker. 69 Judgement, Affaire Castro et Kizito, supra note 64, at 62. Translation by the authors. 70 Ibid., at 57. 71 Ibid., at 70. Translation by the authors. 72 Ibid. 73 For considerations about the security of the code, see W. Betts and R. Vazquez Llorente, ‘Making Public Interest Technology Safer for Human Rights Defenders’, The Engine Room, 8 July 2020, available online at https://www.theengineroom.org/making-public-interest-technology-safer-for-human-rights-defenders/ (visited 10 April 2021). Author notes ∗ Chiara Gabriele is a Legal Advisor for the Great Lakes Program, TRIAL International. [c.gabriele@trialinternational.org] ∗∗ Kelly Matheson is the Associate Director and Senior Attorney for the Video as Evidence Program, WITNESS. [kelly@witness.org] ∗∗∗ Raquel Vazquez Llorente was the Senior Legal Advisor for eyeWitness to Atrocities, International Bar Association. She is now the Permanent Representative to the International Criminal Court, International Federation for Human Rights (FIDH). [rvazquezllorente@fidh.org] © The Author(s) (2021). Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - The Role of Mobile Technology in Documenting International CrimesThe Affaire Castro et Kizito in the Democratic Republic of Congo
JF - Journal of International Criminal Justice
DO - 10.1093/jicj/mqab026
DA - 2021-08-05
UR - https://www.deepdyve.com/lp/oxford-university-press/the-role-of-mobile-technology-in-documenting-international-crimesthe-vSe28u5o0c
SP - 1
EP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -