OPEN SOURCE information-
Digital open source information can provide vital information to supplement traditional forms of evidence, particularly in contexts where such evidence may not be readily available or accessible, such as in the ongoing conflict in Yemen. In the context of our work on accountability for violations of international law in Yemen, GLAN and Bellingcat have designed a practical methodology for online open source investigations, with the aim of increasing the likelihood of open source audiovisual evidence being admitted and given due weight in criminal proceedings. The methodology is designed according to evidentiary principles, and takes into account international guidelines on digital open source investigations, such as the Berkeley Protocol on Digital Open Source Investigations.
Issues surrounding the admissibility and weight of digital open source information have not yet been fully tested in the courts of England and Wales, so this hearing explored the admissibility of online open source evidence in a mock criminal trial. It aimed to robustly test GLAN and Bellingcat’s methodology against traditional principles of evidence, in order to anticipate challenges and strengthen our methodology. Ultimately, we hope the insights gained from this event will improve the utility of open source evidence in legal proceedings in a variety of domestic and international fora. The hearing concerned the admissibility into evidence of a real video depicting an airstrike in Yemen in a fictional trial, with legal arguments put forward by prosecution and defence counsel, witness and expert evidence subjected to cross-examination, and a final judicial determination. This engagement informs a longer term project that seeks to put emerging principles around digital evidence in legal proceedings into practice with lessons learned shared publicly and with key partners and stakeholders.
Although online videos have slowly started to appear in trials of atrocity crimes, it is far from clear how institutions like the ICC and national courts will treat this evidence. In February and March 2021, GLAN and Bellingcat staged a mock voir dire hearing under the jurisdiction of English law in order to put some key questions to the test. The hearing centered around the admissibility of an open source video depicting a Saudi/UAE-led coalition airstrike in Yemen. The video captured the aftermath of one airstrike and the moment of impact of a second attack.
Questions that were tested included:
Open source investigation and analysis can be learned by any person with a computer and an internet connection - so would it be taken seriously by a Crown Court judge?
Would a member of Bellingcat or an equivalent organisation be considered an ‘expert’ in the eyes of the court, or would they be considered, in the enduring words of Mr Justice Bingham “a quack, a charlatan or an enthusiastic amateur?”
Is our purpose-built methodology sufficient to satisfy a court that the investigation was sufficiently thorough and impartial as to be fair to the defendant?
Editing or manipulation?
One interesting distinction that emerged during the mock hearing was the difference between editing and manipulation. Many items of video uncovered online could be crudely edited, cropped or could have logos or captions overlaid. This kind of editing is more easily detectable than manipulation ‘proper’, which usually involves the insertion or removal of content digitally, with the objective of misleading the viewer. In the end, authentication is the process of showing that an item or thing matches the claims being made about it - therefore, being free from any edits is not one and the same as being authentic.
A full write-up of the mock hearing is forthcoming and will be published alongside our report on the contribution of open source information to international humanitarian law analysis.